THE BLACK FLAG: GUANTNAMO BAY AND THE SPACE OF EXCEPTION THE
Transcript of THE BLACK FLAG: GUANTNAMO BAY AND THE SPACE OF EXCEPTION THE
THE BLACK FLAG: GUANTĂNAMO BAY AND THE SPACE OF EXCEPTION
© The author 2006Journal compilation © 2006 Swedish Society for Anthropology and Geography 405
THE BLACK FLAG:GUANTĂNAMO BAY AND THE SPACE OF EXCEPTION
byDerek Gregory
Gregory, D., 2006: The black flag: GuantĂĄnamo Bay and thespace of exception. Geogr. Ann., 88 B (4): 405â427.
ABSTRACT. The American prison camp at GuantĂĄnamo Bay hasoften been described as a lawless space, and many commentatorshave drawn on the writings of Giorgio Agamben to formalize thisdescription as a âspace of exceptionâ. Agambenâs account of therelations between sovereign power, law and violence has much tooffer, but it fails to recognize the continued salience of the colonialarchitectures of power that have been invested in GuantĂĄnamoBay, is insufficiently attentive to the spatialities of international(rather than national) law, and is unduly pessimistic about the pol-itics of resistance. GuantĂĄnamo Bay depends on the mobilizationof two contradictory legal geographies, one that places the prisonoutside the United States ito allow the indefinite detention of itscaptives, and another that places the prison within the UnitedStates in order to permit their âcoercive interogationâ. A detailedanalysis of these interlocking spatialities â as both legal texts andpolitical practices â is crucial for any crique of the global war pris-on. The relations between law and violence are more complex andcontorted than most accounts allow, and sites like GuantĂĄnamoBay need to be seen not as paradigmatic spaces of political mo-dernity (as Agamben argues) but rather as potential spaces whoserealization is an occasion for political struggle not pessimism.
Key words: law, torture, space of exception, âwar on terrorâ, warprison
Even at this hour, beads of sweat crawledacross his scalp. By the time the sun was up itwould be another day for the black flag, whichthe Army hoisted whenever the temperaturerose beyond reason. An apt symbol, Falkthought, like some rectangular hole in the skythat you might fall into, never to reappear. Anational banner for Camp Deltaâs Republic ofNobody, populated by 640 prisoners from for-ty countries, none of whom had the slightestidea how long they would be here.
(Dan Fesperman,The Prisoner of GuantĂĄnamo)
Bare lifeIn the early morning of 10 June 2006 three prison-ers held at the military detention facility at the USNaval Station at GuantĂĄnamo Bay, Cuba, two fromSaudi Arabia and one from Yemen, were found
dead in their cells. Although the three men had beendetained without trial for several years and none ofthem had court cases or military commissionspending (none of them had even been charged), thecommander of the prison dismissed their suicidesas ânot an act of desperation but an act of asymmet-ric warfare against usâ. Although the three men hadbeen on repeated hunger strikes which ended whenthey were strapped into restraint chairs and force-fed by nasal tubes, the US Deputy Assistant Secre-tary of State for Public Diplomacy described theirdeaths as âa Public Relations move to draw atten-tionâ â to what, she did not say â and complainedthat since detainees had access to lawyers, receivedmail and had the ability to write to families, âit washard to see why the men had not protested abouttheir situationâ. Although by presidential decreeprisoners at GuantĂĄnamo are subject to indefinitedetention and coercive interrogation while they arealive, when President George W. Bush learned ofthe three deaths he reportedly stressed the impor-tance of treating their dead bodies âin a humane andculturally sensitive mannerâ. 1
It is in the face of contradictions such as these thatmany commentators have seen GuantĂĄnamo Bay asan iconic example of that paradoxical space whichGiorgio Agamben describes as âthe state of excep-tionâ. In what follows I examine this characterizationin detail, and pay particular attention to the torturedgeographies that wind in and out of the war prison.I begin with a summary account of Agambenâs argu-ment, but while I will be critical of a number of hisformulations I intend this article primarily as a cri-tique of the Bush administrationâs political theologyrather than Agambenâs political philosophy.
Agambenâs account turns on the rotations be-tween sovereign power, the state of exception andbare life. 2 It is a sophisticated thesis, drawing on aheterodox group of European thinkers â Benjamin,Foucault, Heidegger and Schmitt â and relying on aseries of argumentation sketches plucked from clas-sical, medieval and early modern law to establish themodalities of sovereign power. Its pivot is the dismal
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figure of homo sacer, a position Agamben says wasconferred by archaic Roman law upon those whocould not be sacrificed according to ritual (becausethey were outside divine law: their deaths were of novalue to the gods) but who could be killed with im-punity (because they were outside juridical law:their lives were of no value to their contemporaries).Critics have treated Agambenâs reading as partialand partisan: âextravagantâ according to one and âamythâ according to another. 3 But his purpose is nei-ther textual nor historical. Instead, he projects thisfigure into the present, as a sort of cipher or bearerof what he calls âbare lifeâ, by making two moves.
First, Agamben argues that homo sacer emergesat the point where sovereign power suspends thelaw, whose absence thus falls over a zone not mere-ly of exclusion but of abandonment. The produc-tion of such a space â the state of exception â is cen-tral to Agambenâs account of modern biopolitics.This space is produced through a speech-act, ormore accurately a decision in the sense of âa cut inlifeâ, that is at once performative and paradoxical.It is performative because it draws a boundary be-tween politically qualified life and merely existentlife exposed and abandoned to violence: âbare lifeâ.âHowever sacred man is,â Benjamin wrote in hisCritique of Violence, âthere is no sacredness in hiscondition, in his bodily life vulnerable to injury byhis fellow menâ. 4 If this remark is read as bodilylife made vulnerable to injury (through a sovereigndecision) then it becomes clear that bare life is atonce âimmediately politicized but nevertheless ex-cluded from the polisâ. 5 The cut that severs bare lifefrom politically qualified life is paradoxical, how-ever, and all forms of life are thereby made precar-ious, because the boundary it enacts is mobile, os-cillating: in a word (Agambenâs word) indistinct.This is necessary not a contingent condition, more-over, and crucially affects both time and space.First, the exception implies a non-linear temporal-ity: âThe exception does not subtract itself from therule; rather, the rule, suspending itself, gives rise tothe exception and, maintaining itself in relation tothe exception, first constitutes itself as a ruleâ. Sec-ond, the exception â literally that which is âtakenoutsideâ â is effected through a distinctive spatial-ity. For the exception âcannot be included in thewhole of which it is a member and cannot be amember of the whole in which it is always alreadyincludedâ. The mapping of such a space requires atopology, Agamben concludes, because only atwisted cartography of power is capable of foldingsuch propriety into such perversity. 6
Second, Agamben argues that in the contempo-rary world the state of exception has become therule. Writing while Hitlerâs armies advanced onParis, Benjamin had warned that âthe âstate ofemergencyâ in which we live is not the exceptionbut the ruleâ, and Agamben endorses and enlargesthis claim. 7 Although he notes that concentrationcamps first emerged in colonial spaces of exceptionin Cuba and South Africa, he passes over these (andthe colonial architectures of power that producedthem) to focus on Nazi concentration camps and, inparticular, Auschwitz. He treats the concentrationcamp as âthe materialization of the state of excep-tionâ, âthe pure, absolute and impassable biopoliti-cal spaceâ in which juridical rule and bare life enterinto âa threshold of indistinctionâ, through whichâlaw constantly passes over into fact and fact intolaw, and in which the two planes become indistin-guishableâ. Unlike Foucault, who identified theThird Reich as a paroxysmal space in which sov-ereign power and biopolitics coincided, however,Agamben insists that none of this is a rupture fromthe project of modernity. On the contrary, his nar-rative is teleological, and he identifies the camp asâthe hidden paradigm of the political space of mo-dernityâ, and suggests that its operations have beenunfurled to such a degree that today, through themultiplication of the camp as a carceral archipela-go, the state of exception has âreached its maximumworldwide deploymentâ. By this means that sover-eign power has produced both an intensificationand a proliferation of bare life. If this seems exor-bitant, Agamben is perfectly undeterred. âThe nor-mative aspect of law can thus be obliterated andcontradicted with impunity,â he continues, througha constellation of sovereign power and state vio-lence that ânevertheless still claims to be applyingthe lawâ. In such a circumstance, he concludes, thecamp has become âthe new biopolitical nomos ofthe planetâ and âthe juridico-political system [hastransformed] itself into a killing machineâ. 8
As Agamben has developed this critique it is,above all, the âwar on terrorâ that has come to be inhis sights. He argues that the locus par excellenceof this new state of exception is the US Naval Sta-tion at GuantĂĄnamo Bay, where from January 2002men and boys captured during the US invasion ofAfghanistan have been imprisoned. He draws par-allels between the legal status of prisoners in thiscamp and prisoners in Auschwitz: their situations,so he says, are formally â âparadigmaticallyâ âequivalent. Prisoners of a war on terror who are de-nied the status of prisoners of war, Agamben argued
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that their legal status is erased. They are not legalsubjects but âlegally unnameable and unclassifiablebeing[s]â, âthe object of a pure de facto ruleâ or aâraw powerâ whose modalities are âentirely re-moved from the law and from judicial oversightâ. Inthe detainee at GuantĂĄnamo, he concludes, âbarelife reaches its maximum indeterminacyâ. 9
Law, violence and the space of exceptionAgamben often refers to the state of exception asthe space of exception, but its spatiality has re-ceived little sustained analysis. Indeed, MichaelDillon has argued that:
The topology of sovereign power is not in facta space at all. It is a dividing practice. As suchit does work. That work is not simply or evenprimarily, however, to command the domainof the inside of law and of order. Rather, it isto effect a passage between inside and outside,law and violence⊠10
Dillon is I think correct â apart from his first sen-tence. Conceptions of space need not be limited tothe container model that he rejects, and I prefer totreat space as a performance, a doing, because onlyin this way do I think it possible to show how thepassages between inside and outside, law and vio-lence, are effected.11
In what follows, I trace the convolutions of âin-sideâ and âoutsideâ through the instruments of lawand violence. Agamben argues that the space of ex-ception is typically produced through the declara-tion of a state of emergency that becomes theground through which sovereign power constitutesand extends itself. Three days after the terrorist at-tacks on the Pentagon and the World Trade Centeron 11 September 2001, President Bush declared aNational Emergency âby reason of [those] attacksand the continuing and immediate threat of furtherattacks on the United Statesâ. This was followed bya further declaration on 23 September 2001 to dealwith âthe unusual and extraordinary threat to thenational security, foreign policy and economy ofthe United Statesâ by âgrave acts of terrorism andthreats of terrorism committed by foreign terror-istsâ. The emergency has been renewed in each sub-sequent year, and Agamben suggests that Bush âisattempting to produce a situation in which theemergency becomes the ruleâ: in which âprovision-al and exceptional measuresâ are transformed intoâa technique of governmentâ. In fact, however, the
cascade of national emergencies did not begin with9/11. Bush has continued no less than seven previ-ous National Emergencies and declared eight oth-ers. For the United States, it seems, and despite thelanguage used to proclaim them, national emergen-cies are not so âunusual and extraordinaryâ after all.But what attracts Agambenâs attention, and whatdistinguishes the double emergencies declared inSeptember 2001, is their proximity to a supposedlynew kind of war (the âwar on terrorâ) and the legalformularies that have been mobilized around it.12
Yet these emergencies and the war that they havebeen used to license involve a spatiality that islargely foreign to Agambenâs account. His briefhistory of the state of exception in Europe and theUnited States is shaped by the exigencies of war:the American Civil War, the Franco-Prussian War,the First World War and the Second World War. Buthis focus is on suspensions of national law duringstates of emergency declared by France, Germany,Italy, Britain and the United States. The connec-tions between sovereign power and the state of ex-ception are thus always framed by a single state,and the transnational implications receive little at-tention. 13 Yet most of the emergencies and âexcep-tional measuresâ that have punctuated Bushâs pres-idency fold the national into the transnational. Theyaddress other states â Afghanistan, Cuba, Iran, Iraq,Libya, Macedonia and Serbia, Syria, and Zimba-bwe among them â whose actions have, at one timeor another, been held to pose a threat to the nationalsecurity and foreign policy of the United States.The âwar on terrorâ has accentuated the politicaland juridical folds between the national and thetransnational, but this process was underway longbefore 9/11, and the relations between sovereignpower, law and spatiality have been complicated intwo crucial ways that bear directly on GuantĂĄnamoBay.
In the first place, the Westphalian model of sov-ereignty has been compromised as states have in-creasingly asserted prescriptive jurisdiction be-yond their borders. 14 Legal scholar Kal Raustialaargues that âsovereignty has become progressivelyâunbundledâ from territorialityâ. Although extra-territoriality is central to the prosecution of the âwaron terrorâ, American attempts to decouple law andlocation have a much longer history and do not de-rive uniquely from the global assertion of militaryforce. Some of them have addressed transnationaleconomic activities and criminal transactions thathave effects within the United States; indeed,claims like this are made in most of the declarations
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of National Emergency. Others have extended con-stitutional protections to citizens and (in certain cir-cumstances) aliens beyond the borders of the Unit-ed States; one of the central questions posed byGuantĂĄnamo Bay concerns the reach of US federallaw and the access of prisoners to US courts to chal-lenge their detention. That this is indeed a questionbears emphasis. The Bush administration has re-suscitated the doctrine of the unitary executive, inwhich the Presidentâs actions as commander-in-chief are supposedly beyond the law. This perversereading of the Constitution holds that the executivecan override both the judiciary and the legislature.As the profoundly conservative jurist-cum-philos-opher Carl Schmitt had it, âSovereign is he who de-cides the exceptionâ: and Bush has insisted that heis âthe deciderâ. But national emergencies and thespecial powers that derive from their proclamationcannot be reduced to a decisionism; neither doesthe juridical process meekly fold its tent when ithears the martial drums of the commander-in-chief. As Amy Bartholomew argues, a successionof legal challenges in US courts has shown thatâlaw will not willingly abdicate its role to a state ofexception and will continue to act as an obstacle tothe arbitrary authority of the executive branchâ.15
In the second place, international law also mod-ulates the actions of the United States. The compli-cated spatiality that Agamben attributes to the (na-tional) state of exception is compounded by thespatialities of international law, which by its verynature is decentred, without a unitary sovereign toground or guarantee its powers; its provisions aredistributed through a congeries of conventions,treaties and organizations. For this reason, nine-teenth-century legal philosopher John Austin de-clared that international law is not really law at all:laws could only be âproperly so calledâ if they wereâcommands of a sovereignâ, which made interna-tional law merely âlaw by close analogyâ. 16 As Iwill show below, the Bush administration wouldclearly like to have the United States regarded asthe global sovereign, and it has repeatedly an-nounced that its prosecution of the âwar on terrorâwill not be hamstrung by what it views as outmodedlegal protocols. When he was Under Secretary ofDefense for Policy, Douglas Feith declared thatnothing in the Constitution required the Presidentto seek the âapprovalâ of non-Americans before act-ing to protect the United States. This may have beenrhetorically effective but it was also thoroughly dis-ingenuous; it reduced international law to anotherdecisionism when Feith knew very well that inter-
national law imposes obligations rather than mere-ly invites approval. This presumably explains whyhe vilified âlegal lines of attackâ as a form of âasym-metric warfareâ (sic) deployed to constrain Amer-icaâs âglobal freedom of actionâ.17 But legal con-straints on the âwar on terrorâ were not so many ex-ternal impositions and irritants; they were endorsed(and vigorously upheld) by law officers and otherswithin the State Department and even the Penta-gon. Although Bush claimed that he had the powerto suspend the Geneva Conventions in prosecutingthe war in Afghanistan, for example, he elected notto do so; instead, he asserted that they did not applyto those fighting for al-Qaeda or the Taliban. Yet thememoranda exchanged between the Departmentsof Justice and Defense and the State Departmentmake it plain that Bushâs actions were not under-taken without facing down a series of legal chal-lenges. Other provisions of international law arenon-derogable: in particular, the prohibitionagainst torture is an absolute right to which thereare no exceptions. 18 Here, too, as I will also show,the Bush administration engaged in a frenzy of le-gal argument (and legerdemain) in order to under-write the âcoercive interrogationâ of prisoners heldat GuantĂĄnamo and other sites in the global warprison.
Several critics have described the Bush admin-istration as waging âa war on lawâ, and the Presi-dent plainly shares a Feith-based impatience withits scruples. âInternational law?â Bush responded toa reporter in December 2003. âIâd better call mylawyer. I donât know what youâre talking about byinternational lawâ.19 More particularly, it has be-come common to treat GuantĂĄnamo Bay as a âlaw-less placeâ that is âbeyond the reach of national andinternational lawâ; a place where sovereign powerhas been mobilized âoutside the rule of lawâ; a wildzone subject to âa lawless and prerogatory powerâ,where âthe law is effectively suspended in both itsnational and international formsâ and where sover-eign power is extended âin excess of the lawâ; aâlaw-free zoneâ; and a legal âblack holeâ. Agambenhimself describes the state of exception as âakenomatic stateâ, a vacant space limned by theâemptiness of lawâ. 20 This has become a common-place critique on both sides of the Atlantic, but Iwant to draw on the previous paragraphs to qualifyits rendering of the global war prison in three ways.First, I seek to expose the architectures of colonialpower which Agamben more or less ignores, be-cause the shadows that fall over the contemporaryspace of exception are not limited to those of the
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Twin Towers of the World Trade Center or thechimneys of Auschwitz: the imbrications of lawand violence which shape the colonial present havea longer genealogy that needs to be recovered aspart of the process of critique. Second, and follow-ing directly from these considerations, I address theinternational dimensions of law and violence thatAgamben glosses over, not because I think thesefunction as a deus ex machina whose activation canrescue homines sacri from their fate but, on thecontrary, because international law â in its colonialpast and in our colonial present â marks a crucialsite of political struggle. Thirdly, this in its turn re-quires a careful consideration of the possibilities ofresistance that is largely absent from Agambenâsaccount, because there is nothing ineluctable aboutthe production or proliferation of spaces of excep-tion. These claims run throughout the discussionthat follows, where I triangulate âGuantĂĄnamoâfrom three points. First, I plot the contours of Euro-American exceptionalism in order to mark the co-lonial, colonizing gestures through which it hasbeen both authored and authorized; Second, I rattlethe colonial chain that yokes the law to violence inGuantĂĄnamoâs past; finally, I trace the detailed le-gal and para-legal production of GuantĂĄnamo as astaging-post for the contemporary âwar on terrorâ.En route, it will become clear that Bush does indeedknow what âinternational lawâ is about â and that hehas repeatedly called his lawyers.
Euro-American exceptionalismIn their attempt to unravel the connections betweenwhat they call âour brutal global state of warâ andâthe age of Empireâ, Michael Hardt and AntonioNegri begin with the politico-juridical intersectionsbetween two exceptions, one European and the oth-er American. 21 These intersections are also efface-ments, however, and to show why this is so I wantto revisit Agambenâs reading of the work of CarlSchmitt to draw out the shadows of colonial powercast by these two exceptions. Part of Schmittâs pur-pose was to show that in Europe in the sixteenth andseventeenth centuries the theological-moral modelof the âjust warâ sanctioned by the medieval Chris-tian Church against infidels yielded to the secular-juridical model of a regulated and rationalized warbetween formally equivalent sovereign states. Inthis economy of death warring sovereigns were re-quired to recognize each other as legal equals, andon the field of battle their subjects were obliged torecognize each other as subjects. There were thus,
at least in principle, mutually acknowledged limitsto enmity and violence, and within this space â thespace of the jus publicum Europaeum â sovereignpower operated, so Schmitt claimed, through nor-mative regulation. He argued that unlimited enmityand unrestrained violence were now bracketed andprojected âbeyond the lineâ into the non-European(and specifically the âNewâ) world. As William Ra-sch puts it, âEurope sublimate[d] its animality byestablishing the Americas as an extralegal zone inwhich bestial deeds [could] be âacted outâ farawayâ. Schmitt identified this zone of alterity â thespace supposedly vacant for the play of colonialpower â with âthe state of nature in which every-thing is possibleâ and also with the state of excep-tion which âbases itself in an obviously analogousfashion on the idea of delimited, free and emptyspaceâ understood as a âtemporary and spatialsphere in which every law is suspendedâ. For Ag-amben, however, this was no analogy. Instead, thestate of nature and the state of exception emerge asâbut two sides of a single topological process inwhich what was presupposed as external (the stateof nature) now reappears, as in a Möbius strip or aLeyden jar, in the inside (as state of exception)â. 22
This is a contentious but highly effective fiction,a celebration of a particular constellation of politi-cal and economic power, and Schmittâs work has tobe approached with the utmost critical vigilance (inrelation to both Europe and ânot-Europeâ). 23 Hiscentral, elegiac point was that the line â a colonialmeridian â had slowly dissolved by the early twen-tieth century, and that the wild zones of colonial vi-olence had appeared within the ruins of the Euro-pean order. What had happened, and according toAgamben is still happening, is that the âjuridicallyemptyâ space of the state of exception âhas trans-gressed its spatiotemporal boundaries and now,overflowing outside them, is starting to coincidewith the normal order, in which everything againbecomes possibleâ. The dissolution of the lineshould not be read as a reversion to Hobbesâ stateof nature, however, but rather as the emergence ofthe state of exception as what Agamben sees as âthepermanent structure of juridical-political de-local-ization and dis-locationâ. What was once confinedis now loose in the world. 24
Two conclusions follow from this rough outlinethat bear directly on the production of âGuantĂĄna-moâ. First, by implication, the space of normativeregulation was produced by European states as-serting their sovereignty over the world beyondthe line and co-producing through those assertions
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a vast colonial space of exception. But its âtopog-raphies of crueltyâ, as Achille Mbembe calls them,cannot be reduced to and hence derived from aspace of absolute lawlessness. 25 Colonial warswere raw, ruthless, feral; but the violence of colo-nialism was not confined to warfare. The law wasintimately involved in the modalities of colonialviolence, and international law bears the marks ofthose colonial predations; its locus is drawn notonly through relations of sovereign states, there-fore, but also through what Peter Fitzpatrick callsâthe colonial domination of people burdened byracial differenceâ. 26 This is not a peculiarity of in-ternational law, which shares in a generalized gal-lery of imaginative geographies where the other ismarked as irredeemably other, and this culturalcarapace is extremely important. The juridical andthe cultural operate together, and the racializa-tions that they jointly license have been given aparticular force by President Bushâs declaration ofthe âwar on terrorâ as a war of âCivilizationâagainst the barbarians at the gates (and within thewalls). This invocation of an indivisible globalcivilization works to make the exception â under-stood as a zone of indistinction between the lawand its suspension â invisible by conjuring ashape-shifting, nomadic enemy who inhabits theshadows beyond the human. This is a strategy thatdoes not so much sense the presence of the enemy,the midnight scurrying in the skirting-board, asproduce the enemy through the classifications ofits own unnatural history. Schmitt himself warnedthat to confiscate the word âhumanityâ and mobi-lize it to wage war would mean âdenying the ene-my the quality of being human and declaring himto be an outlaw of humanityâ. By this means, hecontinued, war can âbe driven to the most extremeinhumanityâ. In short, âto fight in the name of hu-manity does not eliminate enmityâ, as AndrewNorris observes: âit only makes oneâs enemy therepresentative or embodiment of the inhumanâ. 27
These reductions, given form through both the lawand its suspension, reactivate a colonial past in acolonial present:
These fine ethnic distinctions effectively re-vive a colonial economy in which infrahuman-ity, measured against the benchmark of health-ier imperial standards, diminishes humanrights and can defer human recognition. Thenative, the enemy, the prisoner and all the othershadowy âthird thingsâ lodged between animaland human can only be held accountable under
special emergency rules and fierce martiallaws. Their lowly status underscores the factthat they cannot be reciprocally endowed withthe same vital humanity enjoyed by their well-heeled captors, conquerors, judges, execution-ers and other racial betters. 28
Second, by extrapolation, the United States hassought not only to displace âold Europeâ (Rums-feldâs dismissive phrase) but also to arrogate to it-self the power to draw new horizons of visibilityand to constitute itself âas the sovereign who tran-scends the law and thus assures its meaning and en-forcementâ. In seeking to occupy the space of theglobal sovereign, this strategy renders internationallaw as ânormal lawâ, âlaw properly so calledâ insomething like Austinâs sense, by declaring itsbracketing or suspension. The logic articulatedthrough the âwar on terrorâ thus derives directlyfrom Schmittâs political theology. It asserts that ifâinternational law is to be seen as universal and in-ternational politics as ethical,â then, as CostasDouzinas remarks, âone power must be exemptedfrom its operations, and through its forceful inter-vention and sovereign interpretation of the law,give it its desired seamlessnessâ. It also gives it itsruthlessness, for the humanism that this licenses iswhat Douzinas calls a âmilitary humanismâ that ef-faces its uncounted others as so many mute bearersof bare life. This is the pivot around which the rad-ical critique of American Empire turns. Where oncethe United States claimed to be exempt from thecorruptions of European forms of sovereignty,Hardt and Negri argue that it now claims exemptionfrom the law itself. And where once war was regu-lated, subordinated to international law, it is nowregulating, exploiting the conjunctions betweenviolence and the law.29
GuantĂĄnamo and the colonial pastColonialism frequently operates under the imprima-tur of law, both in the past and (as the people of Pal-estine and Iraq know only too well) in the present,and its violent assaults on land, liberty and life areregularly authorized and articulated through legalformularies. The legislative and interpretive fields,the actions of rulers and judges, are thus suffusedwith violence. If their metropolitan operation âtakesplace in a field of pain and deathâ, as Robert Coveronce observed presciently, then how much more an-guished is their colonial mode of address? If theirnormal powers are ârealized in the fleshâ, as he also
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remarked, then how much more painful is theiremergency invocation? 30
GuantĂĄnamo Bay bears the marks of these liga-tures between colonialism, violence and the law. Itsmodern history has been shaped by military en-counters between three imperial powers â Spain,the United States and the Soviet Union â and by en-during military occupation. Cubans rose againsttheir Spanish occupiers three times in the nine-teenth century: in 1868â1878, 1879â1880 and1895â1898. One of the principal architects of the fi-nal War of Independence was the exiled writer JosĂ©Marti, who was killed in a battle with the Spanisharmy just one month after he returned to the island.It was one of his poems that later provided the in-spiration for the song âGuantĂĄnameraâ. Alarmed bythe strength and success of the revolutionaries, theSpanish military governor sought to cut off theirsupport in the countryside through a policy ofreconcentraciĂłn. Hundreds of thousands of peas-ants were forcibly relocated into barbed-wire con-centration camps close to the towns and cities,where many (some reports said as many as onehalf) of them were left to starve to death. An Amer-ican Senator who travelled through the four west-ern provinces described a landscape of terrible, ter-rifying indistinction: âIt is neither peace nor war. Itis concentration and desolationâ. Public opinion inthe United States was inflamed by press reports ofthese atrocities, but the desire for military interven-tion was also motivated by thoroughly instrumentaleconomic and strategic interests. In fact the UnitedStates had made repeated attempts to purchaseCuba from Spain in the closing decades of the nine-teenth century, and it was only after the last of theseoffers had been rejected in 1897 that Washington,buoyed by the rising tide of public opinion, founda pretext and in 1898 declared war on Spain. Theironies multiply. Then, as now, this was an imagewar. Photographs of the effects of Spainâs counter-insurgency operations heightened public condem-nation of its oppressive colonial regime. This is theorigin of the apocryphal telegram from WilliamRandolph Hearst to Thomas Remington in Havana:âYou furnish the pictures, and Iâll furnish the warâ.And, as Daniel Ross wryly observes, âthe Americanprize for its outrage at Spanish concentrationcamps in Cuba has become the right to run its owncamp on the same territoryâ. 31
When peace was concluded later that year Spainrelinquished all its overseas possessions but Cuba,far from being free, remained under American mil-itary occupation for three further years. In 1901 the
United States stipulated its conditions for Cubanindependence through provisions set out in thePlatt Amendment to the Appropriations Bill in theUS Congress that authorized continued financingof the occupation. The Cuban Constitutional As-sembly rejected these provisions as an encroach-ment on the independence and sovereignty of theisland, but the United States insisted that militaryoccupation would not end without their incorpora-tion into the constitution. They were narrowly en-dorsed by the Assembly in 1902, and reserved tothe United States the right to intervene in the futureâfor the preservation of Cuban independenceâ and,to that end, required Cuba to sell or lease to theUnited States âlands necessary for coaling or navalstationsâ. 32 Accordingly, GuantĂĄnamo Bay wasleased from Cuba in February 1903 âfor the time re-quired for the purposes of coaling and naval sta-tionsâ and the United States was permitted âto doany and all things necessary to fit the premises foruse as coaling and naval stations only, and for noother purposeâ (emphasis added). The lease couldonly be terminated with the consent of both partiesor through the unilateral abandonment of the baseby the United States. Its central provision read thus:
While on the one hand the United States reco-gnizes the continuance of the ultimate sove-reignty of the Republic of Cuba over the abovedescribed areas of land and water, on the otherhand the Republic of Cuba consents that dur-ing the period of the occupation by the UnitedStates of said areas under the terms of thisagreement the United States shall exercisecomplete jurisdiction and control over andwithin said areas.
Amy Kaplan argues that this language imposes ahierarchy between recognition and consent, âren-dering Cuban sovereignty over GuantĂĄnamo Baycontingent on the acknowledgment of the UnitedStates, in exchange for which Cuba agrees to cedesovereignty over part of the territory it never con-trolledâ. Many commentators have argued that indoing so the lease locates GuantĂĄnamo in an am-biguous space between the âultimate sovereigntyâof Cuba and the âcomplete jurisdictionâ of the Unit-ed States.33
In 1959, following the revolution, the govern-ment of Cuba tried unsuccessfully to terminate thelease, and since then it has maintained that the pres-ence of American armed forces on Cuban soil is anillegal occupation (as President Fidel Castro puts it,
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âa knife in the heart of Cubaâs sovereigntyâ). At theheight of the Cuban missile crisis in October 1962,President John F. Kennedy rejected the advice ofhis Secretary of Defense Robert McNamara to pro-pose a timetable for US withdrawal fromGuantĂĄnamo as a quid pro quo for the removal ofSoviet medium-range missiles and bombers fromthe island. Kennedy also ignored requests fromboth Khruschev and Castro to return GuantĂĄnamoto Cuba. The baseâs perimeter was strengthened asa symbolic frontier between capitalism and com-munism, and GuantanĂĄmo remained under Amer-ican occupation throughout the Cold War and be-yond. Over the years the base provided logisticalsupport for US military interventions in Cuba aswell as the Dominican Republic, Guatemala, Gre-nada, Nicaragua and Panama. Before the final dec-ade of the twentieth century, however, its role wasbeing reassessed, and in 1988 James H. Webb, Sec-retary of the Navy, thought it âreasonable to con-clude that we will lose our lease in GuantĂĄnamoBay in 1999â. His conclusion was premature; thelease was retained. From 1991 to 1994 GuantĂĄna-mo Bay was used to provide detention camps for36 000 refugees from the military coup in Haitiwho were denied entry into the United States, andagain in 1994â1995 to imprison 21 000 Cubansseeking asylum in the United States. The forced re-patriation of the detainees was justified on thegrounds that they were not entitled to constitutionalprotection until they were at or within the bordersof the United States. 34 This claim traded onGuantĂĄnamoâs ambiguous location, but the con-struction of detention camps also violated the termsof the lease, which allowed the land to be used asa coaling or naval station and, as I noted above, âforno other purposeâ. A prison camp is an illegal ap-pendix to the original agreement, and yet it becamethe central mission of the base.35
When Kaplan describes GuantĂĄnamo as âhaunt-ed by the ghosts of empireâ, she is surely correct.She also suggests that its history reveals âa logicgrounded in imperialism, whereby coercive statepower has been routinely mobilized beyond thesovereignty of national territory and outside therule of lawâ. Much of that is accurate too; but, as Ihave shown, the base has also emerged through along process of legal argument, and it subsiststhrough legal formularies â bundles of memorandaand minutes, acts and amendments, treaties and theterms of the lease itself â that, taken together, haveproduced a legal impasse: a stand-off between theUnited States (which insists it has a right to occupy
GuantĂĄnamo) and Cuba (which has declared thecontinued occupation illegal). For this reason itseems necessary to add that the space of GuantĂĄna-mo also derives from law at a standstill. It is a zoneof indistinction where the legalized and the extra-legal cross over into one another.36
GuantĂĄnamo and the colonial presentThe Bush administration has made much of the pre-sumptive novelty of the âwar on terrorâ, but the se-lection of GuantĂĄnamo as a prison camp, the des-ignation of its inmates as âunlawful combatantsâand the delineation of a regime of interrogation donot depart from the historical templates that shapedthe baseâs colonial history and their mobilization oflegal protocols. In particular, Fleur Johns arguesthat:
The plight of the GuantĂĄnamo detainees is lessan outcome of lawâs suspension or eviscera-tion than of elaborate regulatory efforts by arange of legal authorities. The detentioncamps are above all works of legal representa-tion and classification. They are spaces wherelaw and liberal proceduralism speak and oper-ate in excess.37
This seems to me to be exactly right; but what is theimperative behind such excess? What demandssuch an involuted legalism through which the lawis contorted into ever more baroque distinctions?The answer is, in part, a matter of indeterminacy:the Bush administration did not speak with a singlevoice (until the President spoke). For far from thereactivation of the prison camps at GuantĂĄnamosignalling the retreat of law from the field of battle,there was a vigorous debate between the Depart-ments of Defense and Justice and the State Depart-ment over the prosecution of the âwar on terrorâ.Legal advisers and political principals constantlyinvoked legal precedents and advanced legal inter-pretations to support their rival claims. The result,as Christiane Wilke argues, was that GuantĂĄnamowas not placed outside the law: âthe applicable le-gal regulations [were] too dense to allow such aclaimâ. But the result of these contending argu-ments â which eventually spilled over into thecourts â was to confine prisoners in what Wilkecalls âa place of rightlessness in a context that [was]not lawlessâ. 38 And this supplies the other part ofthe explanation: the President and his closest ad-visers were determined to treat the prisoners at
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GuantĂĄnamo as legal objects rather than legal sub-jects in order to wage the âwar on terrorâ throughtheir very bodies. This virulently biopolitical strat-egy involved indefinite detention and âcoercive in-terrogationâ but, as I now show, these required theadministration to mobilize two radically different,contradictory legal geographies.
Extra-territoriality and indefinite detentionThe immediate objective, on which both sidesseem to have agreed, was to place selected prison-ers taken during the war in Afghanistan beyond thereach of any federal district court that might en-tertain a habeas corpus petition. A writ of habeascorpus orders a prisoner to be brought before acourt to determine whether s/he has been impris-oned lawfully. Congress granted all federal courtsjurisdiction under title 28 of the United StatesCode to issue such writs to release from custodyprisoners held by state or federal agencies in vio-lation of the Constitution. 39 Here the ambiguousstatus of GuantĂĄnamo was assumed to confer adistinct advantage over other sites that had beenconsidered to be similar to the US bases on Mid-way and Wake. These were former Pacific IslandTrust territories administered by the United Statesthat were included within the federal district ofHawaii. GuantĂĄnamo, it was argued, was beyondthe reach of any district court because, while theUnited States exercised âcomplete jurisdictionâover the base, it was âneither part of the UnitedStates nor a possession or territory of the UnitedStatesâ. 40 One White House counsel revealed theadministrationâs double-speak with unusual clari-ty: GuantĂĄnamoâs indeterminate location âwouldeliminate an important legal ambiguityâ by deny-ing prisoners held there access to US courts. Thereactivation of the Cuban camps thus producedprecisely the space envisaged in the PresidentâsMilitary Order of 13 November 2001, in which itwould be possible to detain and try suspects âforviolation of the laws of war and other applicablelawsâ â in effect, acknowledging the supremacy ofthe rule of law â while simultaneously suspendingâthe principles of law and rules of evidence gen-erally recognised in the trial of criminal cases inthe United States district courtsâ.41
This performance of the space of GuantĂĄnamowould eventually be contested. In December 2003the US Court of Appeals for the 9th Circuit pro-vided a radically different reading of the originallease. The majority noted that in attributing âulti-
mate sovereigntyâ to Cuba, the lease implied thatCubaâs sovereignty was residual in a temporalsense, from which it followed that, during its oc-cupation of the base, âthe United States possessesand exercises all of the attributes of sovereigntyâ.Since Cuba does not retain any substantive sover-eignty while the base is occupied by the UnitedStates, the court concluded that âsovereignty vestsin the United Statesâ, a finding which (as it record-ed) is consistent with the conduct of the UnitedStates, which has routinely treated GuantĂĄnamo âasif it were subject to American sovereigntyâ. In short,the majority determined that Cuba is the reversion-ary sovereign while the United States is the tempo-rary sovereign: but sovereign none the less. 42 InJune 2004, the Supreme Court in a separate caseruled that it had jurisdiction to hear habeas corpuspetitions from those imprisoned at GuantĂĄnamo.The administration had contested the extra-territo-rial application of federal law but the majority ar-gued that â[w]hatever traction the presumptionagainst extraterritoriality might have in other con-texts, it certainly has no application to the opera-tion of the habeas statute with respect to personsdetained within the territorial jurisdiction of theUnited Statesâ. The majority did not think it nec-essary to establish sovereignty; the Achillesâ Heelof the administrationâs case arose precisely becausethe United States exercised âcomplete jurisdictionand controlâ over GuantĂĄnamo, in which case it waswithin the territorial jurisdiction of the UnitedStates. Since the government accepted that DistrictCourts had jurisdiction over federal agents and oth-er American citizens employed at GuantĂĄnamo, andsince non-resident aliens had access to UnitedStates courts to hear petitions of habeas corpus, themajority found that âthe federal courts have juris-diction to determine the legality of the Executiveâspotentially indefinite detention of individuals whoclaim to be wholly innocent of wrongdoingâ. In hisdissenting opinion, however, Justice Scalia com-plained that in its ruling âthe Court boldly extendsthe scope of the habeas statute to the four cornersof the earthâ. Scalia roundly dismissed argumentsbased on jurisdiction; what was crucial, he insist-ed, was that GuantĂĄnamo was not âa sovereign do-minionâ. Hence âthe Commander in Chief and hissubordinates had every reason to expect that theinternment of combatants at GuantĂĄnamo Baywould not have the consequence of bringing thecumbersome machinery of our domestic courtsinto military affairsâ.43
This was precisely their expectation. The admin-
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istrationâs original provisions and determinations,elaborated through a series of detailed memoranda,were designed to produce a convergence betweensovereign power and governmentality throughwhat Judith Butler describes as âa law that is no law,a court that is no court, a process that is no processâ.She sees this as an instrumental, expedient, para-le-gal tactic, in which both detention and trial are de-termined by discretionary judgements that âfunc-tion within a manufactured law or that manufacturelaw as they are performedâ. 44 âGuantanĂĄmoâ wastaken to signify not only an ambiguous space â agrey zone over which the United States claims ju-risdiction but not sovereignty â but also a place ofindeterminate time:
As a territory held by the United States inperpetuity over which sovereignty is indefi-nitely deferred, the temporal dimensions ofGuantĂĄnamoâs location make it a chillinglyappropriate place for the indefinite detentionof unnamed enemies in what the administra-tion calls a perpetual war against terror.45
Intimate geographies and âcoercive interrogationâBut the imperative of indefinite detention, extend-ing the emergency ad infinitum, jibed against a sec-ond objective that interrupted its limbo with thecounter-imperative of speed.46 This is where battlewas joined between Defense and Justice on oneside and the State Department on the other. The firstgroup argued that the âwar on terrorâ had inaugu-rated a new paradigm that required interrogators âtoquickly obtain information from captured terroristsand their sponsorsâ, and in their view this renderedâobsolete [the] Geneva [Convention]âs strict limi-tations on questioning of enemy prisonersâ.47 Thatbeing so â and law officers in the State Departmentprotested that it was not so: âa decision that theConventions do apply [to all parties in the war inAfghanistan] is consistent with the plain languageof the Conventions and the unvaried practice of theUnited Statesâ â interrogations would have to beconducted beyond the prosecutorial reach of boththe federal War Crimes Act and the Geneva Con-ventions. Accepting the advice of Defense and Jus-tice, Bush declared that none of the provisions ofthe Geneva Conventions applied to al-Qaeda pris-oners. He also accepted that he had the authorityâunder the Constitution to suspend [the] Geneva[Conventions] as between the United States and
Afghanistanâ, and his favoured legal advisers out-lined several ways in which he might do so. Signa-tories to the Conventions have the right to âde-nounceâ them, but they are required to give oneyearâs written notice and, if this takes place duringan armed conflict, their repudiation is stayed untilthe end of hostilities. Not surprisingly, Bush decid-ed not to invoke this option (though he reserved theright to do so in future); he preferred the expedientof deeming Taliban prisoners to be âunlawful com-batantsâ who âdid not qualify as prisoners of warunder the Geneva Conventionsâ.48 Although thereare established procedures to determine the statusof prisoners taken during armed conflict, the WhiteHouse insisted that these were only to be invokedwhere there was doubt. And in the view of the Pres-identâs inner circle, reinforced by their politicaltheology, there could never be any doubt.49
Here was sovereign power at its most naked, andwhen the first prisoners from Afghanistan arrived atGuantĂĄnamo Bay in January 2002, it was viscerallyclear that they were to be reduced to bare life. Alllegal protections had been visibly withdrawn fromthem. Photographs of their transportation and in-carceration at once displayed and reinforced theirreduction to something less than human. They hadbeen chained, gloved, ear-muffed and maskedthroughout their twenty-seven-hour flight, and ar-rived soaked in their own bodily waste. Otherwise,the chairman of the Joint Chiefs of Staff explained,they would âgnaw through hydraulic lines at theback of a C-17 to bring it downâ. As they slowlyshuffled down the ramp in their jumpsuits, one re-porter wrote: â[They] donât look natural. They looklike giant bright orange fliesâ. Then were led off totheir makeshift steel-mesh cages at Camp X-Ray.50
The Department of Defense published its own pho-tographs of their arrival, shackled between guards,kneeling and bound, or transported on stretchers tointerrogation and the camp and its cell-blocks, andButler is surely right to conclude that this was doneâto make known that a certain vanquishing had tak-en place, the reversal of national humiliation, a signof successful vindicationâ.51
Camp X-Ray was thrown up in a matter of weeksas a short-term expedient; it was closed in April2002 when detainees were transferred to cells in thenew, more modern Camp Delta, which was intend-ed for long-term incarceration. It consists of fourinternal camps: Camps 1, 2 and 3 are maximum-se-curity facilities in which prisoners are confined toindividual cells with varying levels of restrictionand privilege, and Camp 4 is a medium-security fa-
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cility in which prisoners live in communal dormi-tories. The movement of prisoners through the fourlevels depends on their cooperation with their cap-tors and, in particular, their willingness to provideintelligence of value in the âwar on terrorâ. And yeta senior CIA analyst soon concluded that many ofthe prisoners were minor players or wholly inno-cent people who had been turned in by warlords andlocal militia, police officers and villagers to settleold scores or to receive bounties of thousands ofdollars (âThis is enough money to take care of yourfamily, your village, your tribe for the rest of yourlifeâ). This was later confirmed by a detailed anal-ysis of Combatant Status Review Board Letters(written determinations produced by the US gov-ernment) by Seton Hall Law School, which con-cluded that 93% of the detainees were captured notby US troops at all but by Pakistan or the NorthernAlliance and turned over to US custody, and that onthe governmentâs own admission 55% of the de-tainees had not committed any hostile acts againstthe United States or its coalition allies. Only 8%were characterized as al-Qaeda fighters, and whilemany were associated with the Taliban in one wayor another the detainees include few if any of theministers, governors, mayors or police chiefs whoheld office under the Taliban: many were simplyconscripts. âEvidenceâ used to determine their sta-tus as âenemy combatantsâ included possession ofa Kalashnikov rifle (hardly unusual in the gun-cul-tures of Afghanistan and the Pakistan border) or aCasio watch (capable of being used as a bomb tim-er) or the use of a guesthouse (commonplace in Af-ghanistan).52
While this is truly dreadful, our horror ought notto be measured by the innocence or guilt of the pris-oners â which in any case is subject to the judicialprocess denied to them â but by the calculated with-drawal of subjecthood from all of them. The legaldeterminations of the location of GuantĂĄnamo Bayworked in concert with the imaginative geogra-phies of the âwar on terrorâ to produce what Butlercalls âa zone of uninhabitabilityâ:
The exclusionary matrix by which subjectsare formed requires the simultaneous produc-tion of a domain of abject beingsâŠ. The ab-ject designates here precisely those âunliva-bleâ and âuninhabitableâ zones of social lifewhich are nevertheless densely populated bythose who do not enjoy the status of the sub-ject, but whose living under the sign of theâunlivableâ is required to circumscribe the do-
main of the subject. This zone of uninhabita-bility will constitute the defining limit of thesubjectâs domain.53
If the prisoners were âbodies that matteredâ, to con-tinue to speak with Butler, then in Washington mea-sures were being contemplated to ensure that theymattered only as bodies: as biopoliticized bare life.Throughout the discussion that follows, it is neces-sary (if extraordinarily difficult) to remember thatthe Bush administration insisted repeatedly thatprisoners would be treated in a manner âconsistentwithâ the Geneva Conventions. But such a claim âhowever implausible it turns out to be â relegatesthe treatment of prisoners to a matter of policy notlaw; it is not an acknowledgement that the actionsof the United States are subject to the Geneva Con-ventions, and this lexical slippage creates a space ofexecutive discretion (Schmittâs âdecisionâ) thatwould otherwise be (and as a matter of fact is)closed by international law. 54 It is through thisspace, through its performative reductions, that theabstractions of geopolitics are folded into the inti-macies of the human body. For this reason, it is alsonecessary to keep in mind this passage from J. M.Coetzeeâs Waiting for the Barbarians:
[M]y torturers ⊠were interested only in whatit means to live in a body, as a body, a bodywhich can entertain notions of justice only aslong as it is whole and well, which very soonforgets them when its head is gripped and apipe is pushed down its gullet and pints of saltwater are poured into it until it coughs andretches and flails and voids itself.55
For it was torture that preoccupied the highestreaches of the Bush administration.
Here too GuantĂĄnamo conferred a distinctiveand, so it was argued, a double advantage. First, itallowed Camp Delta to be constructed as what Jo-seph Margulies describes as âthe ideal interrogationchamberâ. Prisoners are at their most vulnerablewhen they are first captured, and the art of interro-gation is to reopen that window of opportunity forproductive questioning. Ideally, this requires aclosed space, isolated from interruptions from theoutside world â for which the island camps are idealâ so that captors may exert the greatest possiblecontrol over their captives and thereby elicit whatthe US Armyâs Field Manual 34â52 (IntelligenceInterrogation) hails as their âwilling cooperationâ.The Manual emphasizes that international law pro-
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scribes torture and coercive interrogation, and re-quires military interrogators to comply with theGeneva Conventions. The US Army has developedits own counter-interrogation strategies as part ofits Survival, Evasion, Resistance and Escape(SERE) programmes, however, and these SEREtechniques were made available to interrogators atCamp Delta. In addition, the CIA has its own hand-books which, like the SERE techniques, seek tocapitalize on the prisonersâ sense of vulnerabilityby reproducing moments of âsignificant traumaticexperienceâ.56 It is thus dismally ironic that, as Co-rine Hegland remarks, âeven as the CIA was decid-ing that most of the prisoners at GuantĂĄnamo didnâthave much to say, Pentagon officials were gettingfrustrated with how little the detainees were say-ingâ. 57 In the summer of 2002, Alberto Gonzales,Counsel to the President and now Attorney-Gener-al, was busily considering advice from the Depart-ment of Justice about the bearing of the internation-al Convention Against Torture and Other Cruel, In-human and Degrading Treatment or Punishment asimplemented by title 18 (Part I, Chapter 113C) ofthe United States Code on the conduct of interro-gations outside the United States. Under §2340A ofthe Code, âwhoever outside the United States com-mits or attempts to commit tortureâ or conspires tocommit torture is guilty of a criminal offence (em-phasis added). This presented the White Housewith a real prisonerâs dilemma, of course, becauseGuantĂĄnamo had been selected as a site of indefi-nite detention because it was outside the UnitedStates. But â the second advantage of the islandcamps â the Department of Justice pointed out thatthe relevant provisions of the Code defined theUnited States as âall areas under the jurisdiction ofthe United Statesâ, including all places and watersâcontinental or insularâ. In addition, according tothe lease, the United States exercised âcomplete ju-risdictionâ over the base. Through this contorted le-gal geo-graphing, GuantĂĄnamo was outside theUnited States in order to foreclose habeas corpuspetitions from prisoners held there and inside theUnited States in order to forestall prosecutions fortorturing them. As Voltaire put it: âThose who canmake you believe absurdities can make you commitatrocitiesâ.58
The memorandum also provided an intricateparsing of definitions of âtortureâ that not onlyraised the bar at which the conjunction of violenceand pain turned into torture but made this thresholdthe property of the torturer. First, âonly the most ex-treme forms of physical or mental harmâ would
constitute torture: severe pain that would âordinari-lyâ be associated with âdeath, organ failure or seri-ous impairment of bodily functionsâ, or severemental suffering that produced âprolonged mentalharmâ. This allowed âa significant range of acts thatthough they might constitute cruel, inhuman or de-grading treatment fail to rise to the level of tortureâ.Second, a defendant could only be convicted ifthese consequences were a known and intendedoutcome of his or her actions: âWhere a defendantacts in good faith, he acts with an honest belief thathe has not engaged in the proscribed conductâ. Ifthese sophistries were not enough, Gonzales was fi-nally, implausibly but chillingly assured that âcrim-inal statutesâ could not infringe on the Presidentâsâcompleteâ and âultimateâ authority over the con-duct of war, including the interrogation of prison-ers.59
This memorandum had been prepared with CIArather than military interrogations in mind, but thelines were already becoming blurred. In October2002 the Joint Chiefs of Staff were presented withrecommendations from the Joint Task Forcecharged with conducting âDepartment of Defense/Interagencyâ interrogations at GuantĂĄnamo to al-low a graduated series of increasingly âaggressiveâtechniques to be used against prisoners who hadâtenaciously resistedâ current methods. Category Itechniques involved direct questioning, yelling anddeception; Category II techniques involved the useof stress positions, hooding, removal of clothingand forced shaving, and the induction of stressthrough aversion (âsuch as fear of dogsâ); CategoryIII techniques involved convincing the prisoner thatdeath or severe pain were imminent for him and/orhis family, âexposure to cold weather or waterâ, andâuse of a wet towel and dripping water to induce themisperception of suffocationâ. The Department ofDefense authorized the first two categories and not-ed that while all the techniques in the third categorymay be âlegally availableâ their approval was notwarranted âat this timeâ.
If the skeletal list of approved techniques seemsunremarkable, even banal, this is the result of twostrategic omissions. First, the list contained no lim-its on the use of these techniques, and in a remark-ably pointed exchange the General Counsel for theNavy, Alberto Mora, urged William Haynes, theGeneral Counsel for the Department of Defense,âto think about the techniques more closely:â
What did âdeprivation of light and auditorystimuliâ mean? Could a detainee be locked in
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a completely dark cell? And for how long? Amonth? Longer? What precisely did the au-thority to exploit phobias permit? Could a de-tainee be held in a coffin? Could phobias beapplied until madness set in?
Seen thus, Mora insisted, there was no clear line be-tween these techniques and torture. 60
Second, the list was concerned entirely with in-struments and provided no consideration of theireffects. Since the end of the Second World War theUnited States has developed a consistent interroga-tion protocol that centres on sensory deprivationand self-inflicted pain. According to historian Al-fred McCoy, âthe method relies on simple, even ba-nal procedures â isolation, standing, heat and cold,light and dark, noise and silence â for a systematicattack on all human sensesâ. Early experimentsshowed that subjects could stand only two or threedays of being goggled, gloved and muffled in alighted cubicle, while forced standing for eighteento twenty-four hours produced âexcruciating painâas ankles swelled, blisters erupted, heart ratessoared and kidneys shut down. These âno-touchâtechniques leave no marks, but they create âa syn-ergy of physical and psychological trauma whosesum is a hammer-blow to the fundamentals of per-sonal identityâ: they deliberately ravage the body inorder to âun-houseâ the mind. 61 I say âun-houseâadvisedly because, as Mark Bowden notes, tortureworks to make space and time, âthe anchors of iden-tityâ, become âunmooredâ so that the victim is ma-rooned in a surreal âlandscape of persuasionâ whereeverything becomes âtangledâ. If Wittgenstein wasright to say that the limits of our language mean thelimits of our world, then it should be clear whyElaine Scarry describes torture as a deliberate âun-makingâ of the world. Pain does not simply resistlanguage â located beyond the sphere of linguisticcommunication â âbut actively destroys it, bringingabout an immediate reversion to a state anterior tolanguage, to the sounds and cries a human beingmakes before language is learnedâ. 62 If prisonersare reduced to bare life through torture, violentlycast into a world beyond language, then the act ofremembering their trauma is both infinitely fragileand, in its potentiality, profoundly political. For theattempt to give voice to their physical pain gives thelie to those who would ventriloquize its infliction asâintelligence-gatheringâ.63
In January 2003, Secretary of Defense DonaldRumsfeld withdrew his permission for the use ofCategory II techniques and convened a Working
Group to prepare an assessment of âDetainee Inter-rogations in the Global War on Terrorismâ. Its finalreport was not circulated to those who had beencritical of the original recommendations. In effect,the Pentagon was now pursuing what Jane Mayerdescribes as a âsecret detention policyâ whoseguidelines followed the memorandum of the previ-ous August to the letter. The report found that, be-cause GuantĂĄnamo is within the United States forthe purpose of title 18, âthe torture Statute does notapply to the conduct of US personnel at GTMOâ. Itreaffirmed the inadmissibility of the Geneva Con-ventions and noted that the US government wouldreject any attempt by the International CriminalCourt to assert jurisdiction over US nationals. Andin reaffirming the ultimate authority of the Presi-dent its authors made an astonishing appeal to theprecedent set by the Nuremberg tribunals: âThe de-fense of superior orders will generally by availablefor US Armed Forces personnel engaged in excep-tional interrogations except where the conduct goesso far as to be patently unlawfulâ. The report sug-gested a range of thirty-five interrogation tech-niques from âasking straightforward questionsâ andproviding or removing privileges through hooding,âmild physical contactâ and dietary or environmen-tal manipulation to âexceptionalâ measures that in-cluded isolation, twenty-hour interrogations,forced shaving, prolonged standing, sleep depriva-tion, âquick, glancing slapsâ, removal of clothingand âuse of aversionsâ (âsimple presence of dogâ).Rumsfeld approved twenty-four of them. Althoughhe withheld approval of all the âexceptionalâ mea-sures other than isolation, however, the list of au-thorized techniques contained none of the cruciallimitations and said nothing about their effects.There was thus considerable latitude for coerciveinterrogation to slide through cruel, inhuman anddegrading treatment into outright torture. If thiswere not enough, Rumsfeld also accepted that âin-terrogators [ought to be] provided with reasonablelatitude to vary techniquesâ for reasons that includ-ed the degree of resistance and âthe urgency of ob-taining informationâ.64
I have no way of knowing how much âlatitudeâthat final clause was intended to allow; I simplymake two observations. First, testimony from pris-oners released from GuantĂĄnamo makes it clearthat the red lines, such as they were, were repeat-edly crossed. There have been consistent, crediblereports of enforced nudity; exposure to extremes oftemperature; deprivation of food, water and painmedication; induced disorientation through loud
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music, strobe lighting and sleep deprivation; men-acing by dogs; prolonged short-shackling in foetalpositions; sexual taunting and assault; immersionin toilet bowls to induce a fear of drowning; and iso-lation for months at a time.65 Second, notwith-standing the limitations placed on military interro-gations, the CIA had been authorized to use six âen-hancedâ techniques since March 2002, which in-cluded forcing prisoners to stand, handcuffed andshackled, for more than forty hours; forcing themto stand naked in a cold cell for prolonged periodsand frequently dousing them with cold water; andsimulated drowning (âwaterboardingâ). The CIAran its own prison within the complex (withinCamp Echo, which was built to house detaineeswho were awaiting hearings before Military Com-missions), but the CIA and the military frequentlyworked in concert because GuantĂĄnamo was thedesignated operating base for a Joint InteragencyInterrogation Facility. 66 In an interview followingthe three suicides, McCoy put it like this:
GuantĂĄnamo is not a conventional militaryprison. Itâs an ad hoc laboratory for the perfec-tion of CIA psychological torture. GuantĂĄna-mo is a complete construction. Itâs a system oftotal psychological torture, designed to breakdown every detainee contained therein, de-signed to produce a state of hopelessness anddespair. 67
Indeed, the commander of JTF GuantĂĄnamo, Ma-jor-General Geoffrey Miller, described the facilityas a central âlaboratory for the war on terrorâ. InSeptember 2003 he led a specialist team to Iraq toassess the Armyâs detention and interrogation op-erations, and recommended the introduction ofânew approaches and operational artâ developed atGuantĂĄnamo to facilitate the ârapid exploitationâ ofprisoners for âactionable intelligenceâ. By the win-ter of 2003 to 2004, journalist Seymour Hersh con-cluded, âAbu Ghraib had become, in effect, anotherGuantĂĄnamoâ.68
During the summer of 2005, when Senator JohnMcCain proposed an amendment to the DefenseAppropriation Bill that would ban cruel, inhumanor degrading treatment or punishment of anyone inUS custody anywhere, the Vice-President insistedthat the CIA should be exempt â it required âextralatitudeâ (that word again) â and the White Housevigorously rejected any such measure that wouldârestrict the Presidentâs authority [not ability] toprotect Americans from terrorist attackâ. The bill
passed the Senate 90â99 and the House 308â122,but when the President reluctantly signed the De-tainee Treatment Act into law at the yearâs end headded a defiant signing statement insisting that hewould interpret its provisions in a manner consist-ent with âconstitutional limitations on the judicialpowerâ and his own executive powers to protect na-tional security, and he made it clear that he reservedthe right to waive those restrictions in âspecial sit-uationsâ. Thus the hermeneutic circle â the mutu-ality of interpretation â is hammered flat until it fitsthe Oval Office.69 However, it turns out that the Actcontained its own Catch-22 inserted by SenatorLindsey Graham. In March 2006 lawyers for theDepartment of Justice reminded a district courtthat, under the provisions of the Act, prisoners atGuantĂĄnamo only had the right to appeal their des-ignation as enemy combatants â not to seek protec-tion against their treatment there. As Human RightsWatch put it, âThe law says you canât torture de-tainees at GuantĂĄnamo, but it also says you canâtenforce that law in the courtsâ.70
The global war prisonI hope this analysis helps to explain why threeyoung men imprisoned at GuantĂĄnamo took theirown lives, and why the Bush administration (at var-ious levels) responded in the way it did. After thethree suicides, the President announced that hewould like to close GuantĂĄnamo because it gavecritics what he called âan excuseâ to say that theUnited States was not upholding the very values itclaimed to be defending. In fact, transfers to the is-land camps were suspended in September 2004,and there are plans to transfer many detainees toother sites in the global war prison. But this doesnot herald the end of GuantĂĄnamo.
Soon after the Supreme Court ruled in Rasul v.Bush in June 2004 that federal courts could hearhabeas corpus petitions from those imprisoned atGuantĂĄnamo, the National Security Council haltedtransfers from Afghanistan, and the Pentagon or-dered the expansion of its prison at Bagram 50kmnorth of Kabul. In 2002 the US Army had converteda vast machine shop at the former Soviet aircraftmaintenance base into a short-term collection andscreening centre (âBagram Temporary InternmentFacilityâ). Its purpose was to interrogate prisonerstransported forward from operating bases else-where in Afghanistan, who would then be released,imprisoned in Afghan jails or transferred toGuantĂĄnamo. This makes the process seem more
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systematic than it was; subsequent investigationsconcluded that the new, ânon-linear battlespaceâ re-quired considerable improvisation in the manage-ment of prisoners, and this resulted in the develop-ment of ad hoc procedures, serious mistakes inscreening prisoners, and extraordinary delays in re-leasing those detained by mistake. In March 2004175 people were held at Bagram in wretched con-ditions. An inspection found that the building hadinadequate ventilation, sanitation and lighting, andthat its roof had multiple leaks. The capacity of themakeshift prison was 275, but during the followingyear, after the flights to GuantĂĄnamo were suspend-ed, it held as as many as 600 people at any one time.Since the President had decreed that the GenevaConventions would not apply to those taken pris-oner during the war in Afghanistan, the US militaryreferred to them not as prisoners of war but âPer-sons Under Controlâ (PUC). They were held inlarge wire cages, and the conditions remained ru-dimentary. One former prisoner described the com-pound as being âlike the cages in Karachi [Zoo]where they put animalsâ. Significantly, the Penta-gon has released no images of its detention opera-tions at Bagram, unlike those at GuantĂĄnamo, andits slick web page on âdetainee affairsâ is silentabout conditions there. More: since the Rasul de-cision was limited to GuantĂĄnamo, prisoners at Ba-gram continue to have no habeas rights; they arenot allowed to appear before the military panels re-viewing their continued imprisonment; they haveno right to hear the allegations against them; andthey have been denied access to lawyers. Camp X-Ray may have closed at GuantĂĄnamo, but for allpractical purposes it has been transplanted to Ba-gram. 71 As the Taliban resurgence continues togain strength, and British and Canadian troops con-duct ever more aggressive counter-insurgency op-erations in the southern countryside, the number ofprisoners held there is likely to increase. It is im-possible to be precise, however, because no detailsabout the transfer of prisoners from coalition toAmerican custody have been released and the pris-on remains shrouded in secrecy.
By the spring of 2005 it was clear to two report-ers that the wheel had turned full circle and that Ba-gram was part of a radical plan to reconfigure theglobal war prison. In the summer, negotiationswere under way to transfer those who would nolonger be held at GuantĂĄnamo to Afghanistan, Sau-di Arabia and Yemen, where they would be incar-cerated in new maximum-security jails financedand constructed by the United States. In April 2006
the Pentagon announced that it planned to repatri-ate a further 140 prisoners âwho have been deter-mined to be no longer enemy combatantsâ. But theState Department announced that they would notbe released until it was satisfied that they would betreated humanely on their return. Particular con-cern was expressed about Algeria, Egypt, SaudiArabia, Uzbekistan and Yemen. According to oneofficial, âWe donât want to send people to a countrywhere we are going to find out two weeks later thattheyâve been torturedâ. This is particularly richcoming from an administration that has done eve-rything in its power to facilitate the torture of pris-oners in its own camps, but it is stupefying whenGuantĂĄnamo is wired to the system of extraordi-nary renditions through which prisoners are madeto disappear to torture chambers in those samecountries (and others) or to a network of CIA âblacksitesâ for âenhanced interrogationâ.72
To date, 267 prisoners have been released fromGuantĂĄnamo and eighty more have been trans-ferred to their own countries for continued deten-tion. But this is not a process of emptying the islandprison. On the contrary; around 470 people remainincarcerated, and construction of new camps hascontinued. Two new maximum-security campshave been designated for the indefinite, potentiallypermanent detention of suspected members of al-Qaeda and other terrorist groups who, it was orig-inally announced, were unlikely to go before a mil-itary tribunal for lack of evidence but whom the ad-ministration âdoes not want to set free or turn overto courts in the United States or other countriesâ.Camp 5 opened in May 2004 and an even largerCamp 6 was scheduled for completion by Septem-ber 2006. Together the two will house around 300prisoners. In September 2006 fourteen prisonerswere transferred from the CIAâs black sites toGuantĂĄnamo, and the President insisted that theywould be tried before military tribunals. He defend-ed the âalternative set of proceduresâ to which theyhad been subjected in CIA custody as âsafe, lawfuland necessaryâ, and it is hardly surprising that hewas equally adamant that the tribunals would admitevidence obtained through âcoercive interroga-tionâ.73
The aggrandizement of sovereign power is char-acteristic of colonial regimes, and the obsessionwith torture is a commonplace of colonial violence.These colonial dispositions are marginalized byAgambenâs metropolitan predilections, but thereare intimate connections between the methods usedby the United States and those used by France in
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Algeria, Britain in Africa and Israel in Palestine. Inaddition, from the School of the Americas (now theWestern Hemisphere Institute for Security Cooper-ation), originally based in Panama and since 1984at Fort Benning in Columbus, Georgia, the UnitedStates has trained more than 60 000 soldiers andpolice officers from the Caribbean and Central andSouth America in counter-insurgency methods thatinclude coercive interrogation and torture.74 Whatis novel about the current situation is that the ob-session with torture does not breed in darkness, inthe secret shadows of the state; it flowers in thethreshold between the legal and the extra-legal.This does not mean that GuantĂĄnamo is a transpar-ent space; its effectiveness for those beyond its cag-es lies precisely in its being a space of constrictedvisibility. Much of what takes place there is stillhidden from the public gaze, but enough is seen forthe envelope of fear to send its message. 75 For thenational security state thrives on fear: the fear ofterrorism to legitimate its actions, and the fear oftorture to intimidate those it casts as its enemies. Inthis sense, the âwar on terrorâ is both a war on lawand a war fought through the law (âlaw as tacticâ,as Foucault might say). Margulies notes that âtwinlegal systems â the separation of powers and thelaws of war â limit warâs reach and regulate its con-ductâ. The Bush administration has sought to de-construct both pillars through executive assertionand juridical legerdemain; it engorges and feedsupon the grey zone between the legal and the extra-legal.76
These considerations have important politicalimplications. I have tried to show that the law is notoutside violence, and that the âwar on terrorâ twiststheir embrace into ever more frenzied and furtivecouplings. âIf we want to resist the reassertion ofthe form of sovereignty at work today in the war onterror,â then Julian Reid argues that âit is essentialthat we focus upon this complicity of law and force:in other words, the complicity of the bio-politicaland the sovereignâ. 77 This means, among otherthings, that law becomes the site of political strug-gle not only in its suspension but also in its formu-lation, interpretation and application.
I understand Kaplanâs pessimism about purelylegal forms of opposition. She fears that the Su-preme Courtâs decisions over GuantĂĄnamo, whichhave been widely interpreted as reversals for theadministration, could still be enlisted in the serviceof âa shadowy hybrid legal system coextensive withthe changing needs of empireâ. Their capacity torein in the discretionary exercise of executive pow-
er over the fate of prisoners is strictly limited, sheargues, because they do not resolve the ambiguousgeo-graphing of GuantĂĄnamo on which the admin-istration has capitalized. 78 Kaplan was writing be-fore the most recent Supreme Court ruling in June2006 that struck down the military tribunals set upto try the Pentagonâs prisoners as illegal under bothfederal and international law. In a five to three ver-dict, the Court found that the President had exceed-ed the bounds placed by Congress on his executiveauthority through the Uniform Code of MilitaryJustice and its incorporation of the Geneva Conven-tions. Accordingly, it reminded the administrationthat ânobody in enemy hands can be outside thelawâ. Contrary to the Presidentâs military order,therefore, the Court determined that all prisonerstaken during armed conflict, including members ofal-Qaeda and the Taliban, are protected underCommon Article 3 of the Geneva Conventions:they must not be tortured or subjected to cruel, in-human or degrading treatment, and they must betried before regularly constituted courts that pro-vide generally recognized judicial guarantees. Thedecision has been described as âthe most significantrebukeâ to the Presidentâs assertion of executivepower since he took office and âa sweeping victoryfor the rule of lawâ, while supporters of the admin-istration have criticized the majority on the Courtfor its âwillingness to bend to world opinionâ and itsattempt to suppress what the indefatigable JohnYoo called âcreative thinkingâ.79
Yet Kaplanâs reservations have considerabletraction here too. The ruling covers the conditionsunder which prisoners may be held and tried, but ithas no direct bearing on their continued detention.The Pentagon circulated a memorandum acceptingthat Common Article 3 would now apply to all pris-oners under its control, but no comparable state-ment was issued about the treatment of prisonersheld by the CIA. In September a new Army FieldManual was released that authorized nineteen in-terrogation techniques and expressly outlawedhooding, forced nudity, beating, threatening withdogs, deprivation of food, water or medication, sex-ual humiliation and âwaterboardingâ. But the CIAwas not only exempted from these provisions: theadministration proposed legislation that wouldmake its âalternative set of proceduresâ lawful. ThePresident also announced that he would complywith the Courtâs ruling on tribunals, but his adviserscapitalized on Justice Breyerâs emollient qualifica-tion: âNothing prevents the President from return-ing to Congress to seek the authority he believes he
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needsâ. The administrationâs legal officers urgedCongress to pass new legislation that would denyprisoners access to lawyers before interrogation,retain the use of military tribunals, and authorizeevidence obtained by hearsay and coercion. AsJohn Yoo explained, the proposed legislation wouldcountermand Hamdan by affirming that âthe Gene-va Conventions are not a source of judicially en-forceable individual rightsâ.80
Even so, all is not lost. These responses confirmthe political struggle involved. In fact, the admin-istrationâs aggressive restatement of its preferenc-es met with considerable scepticism in Congres-sional hearings, and senior military lawyers urgedthe Senate Armed Services Committee to endorsethe substance of the Supreme Court ruling. Theyinsisted that the integrity of the Uniform Code ofMilitary Justice be retained and that the protec-tions afforded by the Geneva Conventions be re-spected.81 In doing so, they made common causewith a host of others who have tried to resist thereduction of human beings to bare life in the glo-bal war prison. For the prisoners at GuantĂĄnamo,this has involved challenges from politicians, civilservants and lawyers inside as well as outside theBush administration, and from prominent nationaland international political, juridical and humanrights organizations, all of which confound at-tempts to place them outside the law. It has also in-cluded the painstaking recovery of the experienc-es of prisoners at Bagram, GuantĂĄnamo, Abu Gh-raib and elsewhere by Amnesty International, Hu-man Rights Watch, the Center for ConstitutionalRights and others, all of which confound attemptsto place them outside language. And the prisonersthemselves have refused to be reduced to bare life:insisting on their individual dignity, standing theirground before hostile military tribunals, and un-dertaking directly biopolitical modes of resis-tance, including hunger strikes and suicide at-tempts that culminated in the deaths of those threeyoung men in June 2006.
All of this matters because, while I think Agam-ben is wrong to represent the space of exception asthe paradigmatic space of political modernity, I dobelieve it is a potential space whose artful brutali-ties must be â and are being â resisted at every turn.To repeat: there is nothing ineluctable about the tri-umph of the security state or the generalization ofthe space of exception, and I conclude in that spiritby hoisting a different black flag over GuantĂĄnamoBay. Howard Ehrlich celebrates the anarchist flagwith these words:
The black flag is the negation of all flags. It isa negation of nationhood which puts the hu-man race against itself and denies the unity ofall humankind. Black is a mood of anger andoutrage at all the hideous crimes against hu-manity perpetrated in the name of allegianceto one state or anotherâŠ.
Black is also a color of mourning; the blackflag which cancels out the nation also mournsits victims, the countless millions murdered inwars, external and internal⊠But black is alsobeautiful. It is a color of determination, of re-solve, of strength, a color by which all othersare clarified and defined.82
Let us make it so.
Derek GregoryDepartment of GeographyUniversity of British Columbia2329 West Mall VancouverBC, Canada V6T 1Z4E-mail: [email protected]
Notes1. Julian Barnes and Carol Williams, âGuantĂĄnamoâs first sui-
cides pressure U.Sâ., Los Angeles Times, 11 June 2006;James Risen and Tim Golden, â3 Prisoners commit suicideat GuantĂĄnamoâ, New York Times, 11 June 2006; JoshWhite, âThree detainees commit suicide at GuantĂĄnamoâ,Washington Post, 11 June 2006; Andrew Buncombe,âWashington condemns first suicides by GuantĂĄnamo in-mates as âa PR exerciseââ, Independent, 12 June 2006.There had been many previous suicide attempts but, consist-ent with these responses, their numbers were reduced by thesimple expedient of reclassifying most of them as âmanipu-lative self-injurious behaviourâ: David Rose, GuantĂĄnamo:Americaâs War on Human Rights (London: Faber, 2004),pp. 64â66.
2. Agambenâs Homo Sacer project comprises several volumesthat he says âshould form a tetralogyâ. Those published todate are: Homo Sacer: Sovereign Power and Bare Life(trans. Daniel Heller-Roazen) (Stanford: Stanford Universi-ty Press, 1998; first published in Italian in 1995) [which heidentifies as Homo Sacer I]); State of Exception [Homo Sac-er II. 1] (trans. Kevin Attell) (Chicago, IL: University ofChicago Press, 2005; first published in Italian in 2003); andRemnants of Auschwitz: The Witness and the Archive [Ho-mo Sacer III] (trans. Daniel Heller-Roazen) (New York:Zone Books, 1999; first published in Italian in 1998).
3. Peter Fitzpatrick, âBare sovereignty: Homo Sacer and theinsistence of lawâ, in Andrew Norris (ed.), Politics, Meta-physics and Death: Essays on Giorgio Agambenâs HomoSacer (Durham, NC: Duke University Press, 2005) pp. 49â73, 51â55; Rainer Maria Kiesow, âLaw and lifeâ, loc. cit.,pp. 248â261, 255. It will be apparent from these criticismsthat the significance of Agambenâs argument does not de-
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pend on any parallels that might be drawn between the Ro-man Empire and the New Rome on the banks of the Potom-ac. What matters is less his reading of homo sacer than hiselaboration of âbare lifeâ.
4. Walter Benjamin, âCritique of violenceâ, in Marcus Bullockand Michael W. Jennings (eds) Walter Benjamin: SelectedWritings, Volume I, 1913â1926 (Cambridge, MA: HarvardUniversity Press, 1996), pp. 236â252. Benjamin adds:âWhat is here pronounced sacred was according to ancientmythical thought the marked bearer of guilt: life itselfâ. Wemight remind ourselves that sacer means both âsacredâ andâaccursedâ, but Agamben recognized this tension in his pre-vious writings only to reject it in Homo Sacer.
5. Catherine Mills, âAgambenâs messianic politics: biopolitics,abandonment and happy lifeâ, Contretemps, 5 (2004), pp.42â62, 46. This is a critical distinction: âbare lifeâ is poisedbetween political life (bios) and biological or existent life(zoe).
6. Agamben, Homo Sacer, pp. 18â20, 25, 28, 37. My under-standing of Agamben and the exception is indebted to Nass-er Hussain, Melissa Ptaceck, âThresholds: sovereignty andthe sacredâ, Law and Society Review, 34 (2000), pp. 495â515; Andrew Norris, âThe exemplary exception: philosophi-cal and political decisions in Giorgio Agambenâs HomoSacerâ, in Norris (ed.) Politics, metaphysics and death, pp.262â283.
7. Walter Benjamin, âOn the concept of historyâ, in HowardEiland and Michael W. Jennings (eds) Walter Benjamin: Se-lected Writings, Volume 4, 1938â1940 (Cambridge MA:Harvard University Press, 2003), pp. 389â400.
8. Agamben, Homo Sacer, pp. 12, 123, 170â171, 174, 176;Agamben, State of Exception, pp. 86â87; cf. MichelFoucault, âSociety Must be Defendedâ: Lectures at the Col-lĂšge de France 1975â1976 (New York: Picador, 2003), p.260. In classical political theory the nomos referred to thematrix of conventions through which political and ethicalconduct was sanctioned, endorsed and accepted. The nomosperformed three core functions: (1) the assignment of plac-es; (2) the nomination of the powers that derive from them;and (3) the delineation of their perimeters. This brings intofocus the active sense of geo-graphing required by Agam-benâs discussion, because the nomos may be seen as a para-digmatic performance of space: âparadigmaticâ because it isaccepted, taken for granted, and so serves as a template forpolitical-moral ordering (ordnung); and âperformanceâ be-cause it is activated as a concrete âtaking placeâ or localiza-tion (ortung). The fulcrum of Agambenâs argument is thatthe ordering of space that constitutes the nomos is producednot only by âthe determination of a juridical and territorialordering (of an Ordnung and an Ortung)â but, above all, byâa âtaking of the outsideâ, an exception (Ausnahme)â: Homosacer, p. 19. For further discussion, see Claudio Minca,âThe return of the campâ, Progress in Human Geography,29 (2004), pp. 405â412. It should be noted, however, thatAgambenâs treatment of the camp as a âparadigmâ in thesense of exemplar involves him in a series of logical, self-referential difficulties that pose serious problems for his(crucial) claim about the generalization of the camp: seeNorris, âExemplary exceptionâ, pp. 273â278. Agamben pro-vides his own gloss on paradigms in âWhat is a paradigm?â,European Graduate School, Saas-Fee, Switzerland, August2002, at http://www.egs.edu/faculty/agamben/agamben-what-is-a-paradigm-2002.html.
9. Agamben, State of Exception, pp. 3â4; Ulrich Rauff, âAn in-terview with Giorgio Agamben: life, a work of art withoutan author: the state of exception, the administration of disor-
der and private lifeâ, German Law Journal, 5 (2004). Afterthese comments were published, a second iconic siteemerged: Abu Ghraib prison, west of Baghdad, where fromAugust 2003 men, women and boys captured during the USinvasion of Iraq were imprisoned. I discuss the connectionsbetween these and other sites in âVanishing points: law, vio-lence and exception in the global war prisonâ, in Derek Gre-gory and Allan Pred (eds) Violent Geographies: Fear, Ter-ror and Political Violence (New York: Routledge, 2007),pp. 317â344.
10. Michael Dillon, âCorrelating sovereign and biopowerâ, inJenny Edkins, VĂ©ronique Pin-Fat and Michael J. Shapiro(eds) Sovereign Lives: Power in Global Politics (New York:Routledge, 2004), pp. 41â60, 56. Cf. âThe sovereign is thepoint of indistinction between violence and law, the thresh-old on which violence passes over into law and law passesover into violenceâ: Agamben, Remnants, p. 32.
11. Gillian Rose, âPerforming spaceâ, in Doreen Massey, JohnAllen and Philip Sarre (eds) Human Geography Today(Cambridge: Polity Press, 1999), pp. 247â259.
12. Agamben, Homo Sacer; State of Exception, pp. 2, 22; for acomprehensive list of National Emergencies see Harold Re-lyea, âNational Emergency Powersâ, Congressional Re-search Service, The Library of Congress, Washington, DC,15 September 2005.
13. Agamben, State of Exception, pp. 11â22. 14. This model (named for the Treaty of Westphalia that ended
the Thirty Years War in 1648) divides the world into sover-eign states that are responsible for their own laws; it regardsall states as equal before the law, requires all states to re-spect the legal existence of other states, and renders inviola-ble the territorial integrity of every state.
15. Kal Raustiala, âThe geography of justiceâ, Fordham LawReview, 73 (2005), pp. 2501â2560; Peter Swan, âAmericanEmpire or Empires: alternative juridifications of the NewWorld Orderâ, in Amy Bartholemew (ed.), Empireâs Law(London: Pluto Press, 2006), pp. 137â160, 158 n. 35.
16. According to Austin, the sovereign has the authority to âab-rogate the law at pleasureâ. Prefiguring Schmittâs dictum,Austin insisted that a sovereign who is bound to observe thelaw is no sovereign: âSupreme power limited by positivelaw is a flat contradiction in termsâ. See John Austin, TheProvince of Jurisprudence Determined ed. by Wilfred E.Rumble (Cambridge: Cambridge University Press, 1995;first published in 1832), p. 254.
17. Amy Bartholemew, âEmpireâs law and the contradictorypolitics of human rights,â in Bartholomew (ed.) EmpireâsLaw, pp. 161â189, 161â162. Feith was enlarging on an ex-traordinary sentence from the US National Defense Strategy(2005): âOur strength as a nation-state will continue to bechallenged by those who employ a strategy of the weak, us-ing international fora, judicial processes and terrorismâ (p.5). See US Department of Defense, Special Briefing, 18March 2005. For contrary views as to the importance of in-ternational law in counter-terrorism and the âwar on terrorâand its extensions, see Michael Byers, War Law: Interna-tional Law and Armed Conflict (London: Atlantic Books,2005); Helen Duffy, The âWar on Terrorâ and the Frame-work of International Law (Cambridge: Cambridge Univer-sity Press, 2005).
18. The only other absolutely non-derogable rights are the rightnot to be enslaved and the right not to be prosecuted forsomething that was not an offence at the time it was com-mitted. See Lisa Hajjar, âTorture and the futureâ, Interven-tions: Middle East Report Online, May 2004; Joan Fitz-patrick, âProtection against abuse of the concept of âEmer-
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gencyââ, in Lawrence Henkin and John Lawrence Hargrove(eds) Human Rights: An Agenda for the Next Century(Washington, DC: American Society of International Law,1994).
19. âPresident discusses year-end accomplishments in Cabinetmeetingâ, at http://www.whitehouse.gov/news/releases, 11December 2003; Philippe Sands, Lawless World: Americaand the Making and Breaking of Global Rules (London: Al-len Lane, 2005), p. xii.
20. Amy Kaplan, âHomeland insecurities: reflections on lan-guage and spaceâ, Radical History Review, 85 (2003), pp.82â93: 91â92; idem., âWhere is GuantĂĄnamo?â, AmericanQuarterly, 57 (2005), pp. 831â858, 832; Judith Butler, âIn-definite detentionâ, in her Precarious Life: The Powers ofMourning and Violence (London and New York: Verso,2004), pp. 50â111: pp. 51, 56, 64; Michael Ratner, âTheGuantĂĄnamo prisonersâ, in Rachel Meeropol (ed.), Ameri-caâs Disappeared: Secret Imprisonment, Detainees and theâWar on Terrorâ (New York: Seven Stories Press, 2005), pp.31â59, 33; Johan Steyn, âGuantĂĄnamo Bay: the legal blackholeâ, 27th F.A. Mann Lecture, 25 November 2003; ScottMichaelsen and Scott Cutler Shershow, âThe GuantĂĄnamoâBlack Holeâ: The law of war and the sovereign exceptionâ,Middle East Report Online, 11 January 2004; Agamben,State of Exception, pp. 6, 86. See also Oliver Klemens,Jesko Fezer, Kim Forster and Sabine Horlitz, âExtra-territo-rial spaces and camps: judicial and political spaces in theâwar on terrorismââ, in Anselm Franke, Rafi Segal and EyalWeizman (eds) Territories: Islands, Camps and OtherStates of Utopia (Berlin: KW â Institute for ContemporaryArt, 2003), pp. 22â28
21. Michael Hardt and Antonio Negri, Multitude: War and De-mocracy in the Age of Empire (New York: Penguin, 2004),pp. 5â10.
22. Carl Schmitt, The Nomos of the Earth in the InternationalLaw of the Jus Publicum Europaeum trans. Gary Ulmen(New York: Telos, 2003; first published in German in1950). My understanding of Schmitt has been facilitated byWilliam Rasch, âHuman rights as geopolitics: Carl Schmittand the legal form of American supremacyâ, Cultural Cri-tique, 54 (2003), pp. 120â147; Matti Koskeniemmi, âInter-national law as political theology: how to read Nomos derErde?â, Constellations, 11 (2004), pp. 492â511; Agamben,Homo sacer, pp. 36â37.
23. Schmitt substitutes teleology for history; his account of aâvirtuous pastâ in which war within Europe was subject torationalization and regulation is a projection of politicaltheology on to the plane of absolutism: Koskenniemi, âInter-national lawâ, p. 499.
24. Agamben, Homo sacer, pp. 17â18 (emphasis added). 25. Achille Mbembe, âNecropoliticsâ, Public Culture, 15
(2003), pp. 11â40. Mbembe works with both Schmitt andAgamben to expose the conjunctions between colonial mo-dernity, sovereign power and what he calls âthe work ofdeathâ. He sometimes makes the conjuncture conditional:âthe colonies are the locus par excellence where the controlsand guarantees of judicial order can be suspendedâ; âthe col-onies might be ruled over in absolute lawlessnessâ (p. 24;emphases added). But the tenor of his argument is to treatcolonial power as synonymous with lawlessness, and thismeans that he cannot adequately register the ways in whichlaw and violence march hand in hand.
26. Rasch, âHuman rightsâ, pp. 127â128; Peter Fitzpatrick,ââGods would be neededâŠâ: American Empire and the ruleof (international) lawâ, Leiden journal of international law,16 (2003), pp. 429â466, 448. Richard Falk emphasizes that
international law has a contradictory constitution, operatingunder the sign of colonialism as an instrument of both ruleand resistance, âa Frankenstein that cannot be consistentlycontrolled by its inventorsâ: âOrientalism and internationallaw: a matter of contemporary urgencyâ, Arab World Geo-grapher, 7 (2004), pp. 103â116, 109. But as we will see, thelaw produces its own monsters too.
27. Rasch, âHuman rightsâ, p. 130; Carl Schmitt, The Conceptof the Political, trans. by George Schwab (Chicago, IL: Uni-versity of Chicago Press, 1996; first published in German in1932) p. 54; Andrew Norris, ââUs and Themâ: the politics ofAmerican self-assertion after 9/11â, Metaphilosophy, 35(2004), pp. 249â227; see also Matt Coleman, âThe namingof âTerrorismâ and evil âoutlawsâ: geopolitical place-mak-ing after 11 Septemberâ, Geopolitics, 8 (2004), pp. 87â104.
28. Paul Gilroy, ââWhere ignorant armies clash by nightâ: ho-mogeneous community and the planetary aspectâ, Interna-tional Journal of Cultural Studies, 6 (3) (2003), pp. 261â276, 263; see also Derek Gregory, The Colonial Present:Afghanistan, Palestine, Iraq (Oxford: Blackwell, 2004).
29. Anne Orford, âThe destiny of international lawâ, LeidenJournal of International Law, 17 (2004), pp. 441â476, 444;Costas Douzinas, The End of Human Rights (Oxford: Hart,2000), p. 329; idem., âHumanity, military humanism and thenew moral orderâ, Economy and Society, 32 (2003), pp.159â183; Hardt and Negri, Multitude, pp. 9, 22.
30. Robert Cover, âViolence and the wordâ, Yale Law Journal,95 (1986), pp. 1601â1629; Nasser Hussain, âTowards a ju-risprudence of emergency: colonialism and the rule of lawâ,Law and Critique, 10 (1999), pp. 93â115; idem., The Juris-prudence of Emergency: Colonialism and the Rule of Law(Ann Arbor: University of Michigan Press, 2003).
31. Louis PĂ©rez, Cuba Between Empires, 1878â1902 (Pitts-burgh: University of Pittsburgh Press, 1983), pp. 55â56;Ada Ferrer, Insurgent Cuba: Race, Nation and Revolution1868â1898 (Chapel Hill: University of North CarolinaPress, 1999); W. Joseph Campbell, âNot likely sent: theRemington-Hearst âtelegramsââ, Journalism and MassCommunication Quarterly, 77 (2000), pp. 405â422; DanielRoss, Violent Democracy (Cambridge: Cambridge Univer-sity Press, 2004), p. 128.
32. The US invoked these provisions to support its military in-terventions in 1906, 1912, 1917 and 1920. The PlattAmendment was abrogated in 1934 when a new treaty wassigned between the US and Cuba, but this did not affect thelease of GuantĂĄnamo.
33. Louis PĂ©rez, Cuba under the Platt Amendment, 1902â1934(Pittsburgh: University of Pittsburgh Press, 1986); Alfred deZayas, âThe status of GuantĂĄnamo and the status of the de-taineesâ, Douglas Mc.K. Brown Lecture, University of Brit-ish Columbia, November 2003; Kaplan, âWhere isGuantĂĄnamo?â, p. 836.
34. Minutes of the National Security Council meeting, 20 Octo-ber 1962, at the Avalon Project at Yale Law School, http://www.yale.edu/lawweb/avalon; âU.S. Military: StrengthThrough Flexibilityâ, Remarks by James H. Webb, NationalPress Club, Washington, DC, 13 January 1988; de Zayas,âThe status of GuantĂĄnamoâ. The initial camps for Haitianrefugees were set up around radio antennas on the south sideof the base and identified by radio call signs (Camp Alphathrough Camp Golf); later camps were set up on the northside of the base and given call signs from the opposite endof the phonetic alphabet (including Camp X-Ray).
35. This is not a partisan conclusion. In December 2003 the USCourt of Appeals for the Ninth Circuit concluded that sincethe Cuban revolution the US government âhas purposely
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acted in a manner directly inconsistent with the terms of theLease and the continuing Treatyâ and âhas used the Base forwhatever purposes it deemed necessary or desirableâ. Gh-erebi v. Bush, 35.2F.3d, 18072â18073 (9th Cir., 2003). TheCourt further argued that these actions have a direct bearingon sovereignty over GuantĂĄnamo: see below, pp. 413â414.
36. Kaplan, âWhere is GuantĂĄnamo?â, pp. 832, 836; cf. Agam-ben, State of Exception, p. 48, who describes the state of ex-ception as both âan emptiness and standstill of lawâ (empha-sis added).
37. Fleur Johns, âGuantĂĄnamo Bay and the annihilation of theexceptionâ, European Journal of International Law, 16(2005), pp. 613â635, 614.
38. Christiane Wilke, âWar vs. Justice: Terrorism cases, enemycombatants and political justice in US courtsâ, Politics andSociety, 33 (2005), pp. 637â669, 62; emphasis added.
39. Habeas corpus has been described as âthe fundamental in-strument for safeguarding individual freedom against arbi-trary and lawless state actionâ (Harris v. Nelson, 394 U.S.286, 290â291 (1969)), but its genealogy is more complicat-ed and contradictory than this liberal reading implies: see,e.g. Husain, âThe âWrit of Libertyâ in a regime of conquest:Habeas corpus and the colonial judiciaryâ, in his Jurispru-dence, ch. 3.
40. Neil Smith argues that the âliminal legal geographyâ ofGuantĂĄnamo derives from the legal script written for PuertoRico, another spoil of the Spanish-American War. In 1901the US Supreme Court found that âwhilst in an internationalsense P[u]erto Rico was not a foreign country ⊠it was for-eign to the United States in a domestic senseâ. This decisionforms part of a series known as the Insular Cases (1901â1922) that addressed the extension of constitutional provi-sions to territories where the United States exercises juris-diction and control rather than sovereignty. Although thebase was leased and not annexed, the Insular Cases haveplayed a significant role in the juridification of GuantĂĄna-mo, but they have been invoked in support of as well asagainst the rights of the detainees. See Neil Smith, The End-game of Globalization (New York: Routledge, 2005) pp.167â169; Kaplan, âWhere is GuantĂĄnamo?â, pp. 837, 841â845.
41. âDetention, treatment and trial of certain non-citizens in thewar against terrorismâ, Military Order, 13 November 2001;âPossible Habeas jurisdiction over aliens held in GuantĂĄna-mo Bay, Cubaâ, Memorandum from Patrick F. Philbin andJohn C. Yoo, Deputy Assistant Attorneys General, US De-partment of Justice, to William J. Haynes II, General Coun-sel, US Department of Defense, 28 December 2001: both re-printed in Karen J. Greenberg and Joshua L. Dratel (eds) TheTorture Papers: The Road to Abu Ghraib (Cambridge: Cam-bridge University Press, 2005), pp. 25â28; 29â37; Transcriptof interview with Bradford Berenson, PBS Frontline, 14 July2005. David Bowker, a State Department lawyer, confirmedthe determination of the Vice-President to find âthe legalequivalent of outer space â a lawless universe ⊠where de-tainees would have no legal rights and US courts would haveno power to interveneâ: Michael Isikoff and Stuart Taylor,âThe Gitmo Falloutâ, Newsweek, 17 July 2006.
42. Gherebi v. Bush, 35.2F.3d, 18060, 18067â18069 (9th Cir.,2003); see also Raustalia, âGeography of justiceâ, pp. 2535â2542. Raustalia notes that a similar conclusion may bedrawn from the leaseâs assignment of âcomplete control andjurisdictionâ over GuantĂĄnamo to the United States; in hisview, âcompleteâ implies a âspecial sort of controlâ fullyconsistent with the assignment of temporary sovereignty tothe United States (p. 2541).
43. Rasul v. Bush, 321F.3d, 1134 (S. Ct., 2004). The SupremeCourtâs landmark ruling was subsequently challenged bythe Detainee Treatment Act (2005) that, inter alia, limitedjurisdiction to the validity of the decision to detain a non-citizen as an âenemy combatantâ; it also reaffirmed that âForthe purposes of this section, the term âUnited Statesâ, whenused in a geographic sense ⊠does not include the UnitedStates Naval Station, GuantĂĄnamo Bay, Cubaâ. (see below,p. 416).
44. Butler, âIndefinite detentionâ, pp. 58, 62; Johns, âGuantĂĄna-mo Bayâ, radicalizes this interpretation: for her, GuantĂĄna-mo Bay is âmore cogently read as the jurisdictional outcomeof attempts to domesticate the political possibilities occa-sioned by the experience of exceptionalismâ. The regime atGuantĂĄnamo Bay, so she suggests, âis dedicated to produc-ing experiences of having no option, no doubt and no re-sponsibilityâ.
45. Kaplan, âWhere is GuantĂĄnamo?â p. 837.46. Butler says much less about this second imperative, though
she does acknowledge that the withdrawal of legal protec-tions from the prisoners and their indefinite detention are ef-fected through their constitution as âless than humanâ: pp.75â76, 98. Johns is silent on the question.
47. This argument rests on the claim that the Geneva Conven-tions contain within themselves the contingent circumstanc-es of their formulation, but this is precisely the grounds onwhich Cuba seeks to revoke the lease of GuantĂĄnamo Bay:it too was drawn up in contingent circumstances that nolonger obtain. The United States unilaterally disavows thecircumstances in the first case and upholds them in the sec-ond. In doing so, it also follows Schmittâs claim that âirregu-lar combatantsâ and changes in the apparatus of war bothplace considerable pressure on the framework of interna-tional law: William Scheuerman, âCarl Schmitt and the roadto Abu Ghraibâ, Constellations, 13 (2006), pp. 108â124,118â121.
48. Rose, GuantĂĄnamo, p. 30; âApplication of treaties and lawsto al Qaeda and Taliban detaineesâ, Draft memorandum forWilliam J. Haynes III, General Counsel, Department of De-fense, from John Yoo (Deputy Assistant Attorney General)and Robert Delabunty (Special Counsel), 9 January 2002;âApplication of treaties and laws to al Qaeda and Talibandetaineesâ, Memorandum for Alberto Gonzales, Counsel tothe President, and William J. Haynes III, General Counsel,Department of Defense, from Department of Justice, 22 Jan-uary 2002; âComments on your paper on the Geneva Con-ventionsâ, Memorandum for Counsel to the President, fromWilliam H. Taft IV, Legal Adviser, Department of State, 2February 2002; âHumane treatment of al Qaeda and Talibandetaineesâ, Memorandum from the President, 7 February2002: in Greenberg and Dratel (eds) Torture Papers, pp.38â79, 67, 69; pp. 81â117, 102, 129, 134. In the Draft mem-orandum it was conceded that âthere remains the distinctquestion whether such determinations would be valid as amatter of international lawâ but, in a passage deleted fromthe final version of 22 January, the authors had insisted thatit would be âimplausibleâ to claim âthat all obligations im-posed by the Geneva Conventions are absolute and that non-performance is never excusableâ (p. 69).
49. For reviews of these determinations see Kenneth Watkins,âWarriors without rights? Combatants, unprivileged bellig-erents and the struggle over legitimacyâ, Occasional Paper,Program on Humanitarian Policy and Conflict Research,Harvard University, winter 2005; de Zayas, âThe status ofGuantĂĄnamoâ; G.H. Aldrich, âThe Taliban, Al Qaeda andthe determination of illegal combatantsâ, American Journal
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of International Law, 96 (2002), pp. 891â898. When Com-batant Status Review Tribunals were finally established, therecord of their proceedings confirmed Butlerâs characteriza-tion. Defendants were told that the tribunals followed USlaw but legal representation was not necessary because theywere not legal proceedings. When one defendant repeatedlyraised the issue of international law, he was told: âI donâtcare about international law. I donât want to hear the wordsâinternational lawâ again. We are not concerned with inter-national lawâ. See GuantĂĄnamo and Beyond: The ContinuedPursuit of Unchecked Executive Power (Amnesty Interna-tional, 13 May 2005), pp. 54â55.
50. See David Rose, GuantĂĄnamo: Americaâs War on HumanRights (London: Faber and Faber, 2004); Gregory, ColonialPresent, p. 66.
51. Butler, âIndefinite detentionâ, p. 77. See also Naomi Klein,âThe true purpose of tortureâ, Guardian, 14 May 2005, whosuggests that the Department of Defense released its photo-graphs of caged prisoners at GuantĂĄnamo in order to con-firm the absolutism of American power: to intimidate â toterrorize â not only individuals but the collective will to re-sist. In releasing the photographs, however, the Pentagonwas hoist on its own petard. It now complains that the mediacontinue to use the stock images of the defunct Camp X-Ray to illustrate contemporary conditions at GuantĂĄnamo.
52. Tim Golden and Dan Van Natta Jr, âUS said to overstatevalue of GuantĂĄnamo detaineesâ, New York Times, 21 June2004; Rose, GuantĂĄnamo, p. 42; Michelle Faul, âGitmo de-tainees say they were soldâ, Associated Press, 31 May 2005;Mark Denbeaux, Joshua Denbeaux and âThe GuantĂĄnamodetainees: the Governmentâs storyâ at law.shu.edu/news/GuantĂĄnamo_report_final_2_08_06.pdf, May 2005.
53. Judith Butler, Bodies that Matter: on the Discursive Limitsof âSexâ (New York: Routledge, 1993), p. 3.
54. Nigel Rodley, âLooking-glass warâ, Index on Censorship(2005), pp. 54â61: 55; Butler, Precarious life, pp. 80â81. Itis exactly this space that the Supreme Court sought to closein its majority ruling on 29 June 2006. It found that the Pres-ident acting as Commander-in-Chief has no authority tocontravene the Uniform Code of Military Justice nor the in-ternational law of war that it incorporates, and determinedthat Common Article 3 (common to all four Geneva Con-ventions) applies to anyone captured in a military conflict:thus torture and cruel, inhuman and degrading treatment areexpressly forbidden by law. Hamdan v. Rumsfeld, 415 F.3d33 (S. Ct., 2006).
55. J.M. Coetzee, Waiting for the Barbarians (New York: Vin-tage, 2000; first published in 1980), p. 12.
56. Joseph Margulies, GuantĂĄnamo and the Abuse of Presiden-tial Power (New York: Simon & Schuster, 2006), pp. 26â27, 31, 39â40, 121; Mark Benjamin, âTorture teachersâ, Sa-lon.com, 29 June 2006.
57. Corine Hegland, âWho is at GuantĂĄnamo Bay?â, âGuantĂĄna-mo gripâ, and âEmpty evidenceâ, all in National Journal, 3February 2006.
58. If this makes GuantĂĄnamo a âthird spaceâ, it is also a power-ful reminder that such spaces, however transgressive theymay be, are not inherently liberating.
59. âStandards of conduct for interrogation under 18 USC §§2340â2340Aâ, Memorandum for Alberto Gonzales, Coun-sel to the President, from Jay S. Bybee [written by JohnYoo], Assistant Attorney General, Department of Justice, 1August 2002; Memorandum for Alberto Gonzales, Counselto the President, from John Yoo, Deputy Assistant AttorneyGeneral, Department of Justice, 1 August 2002: in Green-berg and Dratel (eds), Torture Papers, pp. 172â217, 218â
222: 202â203. The second memorandum did not promisethe President complete absolution because âit would be im-possible to control the actions of a rogue (sic) prosecutor orjudgeâ (p. 218). These determinations were repudiated assoon as the memorandum became public in June 2004, andwas conveniently replaced by new guidelines just one weekbefore Congressional hearings on Gonzalesâ nomination asAttorney General. In those meetings, however, Gonzales re-affirmed that âthere is no legal obligation under [the Con-vention Against Torture] on cruel, inhuman or degradingtreatment with respect to aliens overseasâ. For commentar-ies, see Tom Engelhardt, âGeorge Orwell ⊠meet FranzKafkaâ, at http://www.tomdispatch.com, 13 June 2004;David Cole, âWhat Bush wants to hearâ, New York Reviewof Books, 17 November 2005; Lisa Hajjar, âTorture and thelawless âNew Paradigmââ, Interventions: Middle East Re-port Online, at http://www.merip.org/mero, 9 December2005.
60. Greenberg and Dratel (eds), Torture Papers, pp. 228, 223,237; âStatement for the record: Office of General Counselinvolvement in interrogation issuesâ, Memorandum fromAlberto J. Mora, General Counsel of the Navy to Vice-Ad-miral Albert Church, Inspector General, Department of theNavy, 7 July 2004;
61. Alfred W. McCoy, A Question of Torture: CIA Interroga-tion from the Cold War to the War on Terror (New York:Metropolitan Books, 2006), pp. 8, 35, 46. Amnesty Interna-tional describes these techniques as producing âas grave anassault on the human person as more traditional techniquesof physical tortureâ (pp. 56â57) and in its judgement againstthe use of these techniques by British security forces inNorthern Ireland in 1977 the European Human Rights Com-mission described them as âa modern system of tortureâ (p.57). The parallels with GuantĂĄnamo are exact: see pp. 125â131.
62. Mark Bowden, âThe dark art of interrogationâ, AtlanticMonthly, October 2003; Elaine Scarry, The Body in Pain:the Making and Unmaking of the World (New York: OxfordUniversity Press, 1985), p. 4. âAs the content of oneâs worlddisintegrates,â she adds, âso the content of oneâs languagedisintegrates: as the self disintegrates, so that which wouldexpress and project the self is robbed of its sources and sub-jectâ (p. 35).
63. Ibid., pp. 12â14. For a brilliant reflection on these mattersthat engages directly and sympathetically with Agamben,see Jenny Edkins, âTestimony and sovereign power afterAuschwitz: Holocaust witnesses and Kosovo refugeesâ, inher Trauma and the Memory of Politics (Cambridge: Cam-bridge University Press, 2003), pp. 175â214.
64. âRequest for approval of counter-resistance strategiesâ,Memorandum for Commander, Joint Task Force 170 fromLTC Jerald Phifer, Director J2, 11 October 2002; âCounter-resistance techniquesâ, Memorandum for Chairman of theJoint Chiefs of Staff from General James Hill, US SouthernCommand, 25 October 2002; Memorandum for Secretary ofDefense from William J. Haynes II, General Counsel, De-partment of Defense, 27 November 2002; Draft WorkingGroup Report on Detainee Interrogations in the Global Waron Terrorism, 6 March 2003; Working Group Report on De-tainee Interrogations in the Global War on Terrorism, 4April 2003; âCounter-resistance techniques in the war onterrorismâ, Memorandum from Secretary of Defense for theCommander US Southern Command, 16 April 2003, inGreenberg and Dratel (eds), Torture Papers, pp. 228, 223,237, 241â285, 265â266, 286â359, 291, 360â365, 365.
65. See, David Rose, âHow we survived jail hellâ, Observer, 14
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March 2004; Severin Carrell, âUS guards at GuantĂĄnamotortured me, says UK man,â Independent, 24 April 2005;âDetention in Afghanistan and GuantĂĄnamo Bay: statementof Shafiq Rasul, Asif Iqbal and Rhuhel Ahmedâ, Center forConstitutional Rights, New York, 26 July 2004; GuantĂĄna-mo and Beyond; âTestimony of GuantĂĄnamo detainee Ju-mah al-Dossariâ, Amnesty International, 7 November 2005;Mark Oliver, ââThey couldnât take away my dignityââ,Guardian, 18 November 2005; Moazzam Begg and VictoriaBrittain, Enemy Combatant: A British Muslimâs Journey toGuantĂĄnamo and Back (New York: Free Press, 2006); Re-port on Torture and Cruel, Inhuman and Degrading Treat-ment of Prisoners at GuantĂĄnamo Bay, Cuba (New York:Center for Constitutional Rights, July 2006).
66. Dana Priest and Scott Higham, âAt GuantĂĄnamo, a prisonwithin a prisonâ, Washington Post, 17 December 2004;Douglas Jehl, âClassified report warned on CIAâs tactics ininterrogationâ, New York Times, 9 November 2005; BrianRoss and Richard Esposito, âCIAâs harsh interrogation tac-tics describedâ, ABC News, 18 November 2005. The Direc-tor of the CIA insisted that none of these techniques consti-tuted torture, but an editorial in the Washington Post, asked:âIf an American pilot is captured in the Middle East, thenbeaten, held naked in a cold cell and subjected to simulateddrowning, will [CIA Director] Goss say that he has not beentortured?â âDirector for Tortureâ, Washington Post, 23 No-vember 2005.
67. âGuantĂĄnamo: a history of tortureâ, transcript of interviewwith Alfred McCoy at http://www.informationclearing-house.info/article13597.htm.
68. Seymour Hersh, Chain of Command: The Road from 9/11 toAbu Ghraib (New York: HarperCollins, 2004), p. 41; for afull discussion, see Gregory, âVanishing pointsâ.
69. Josh White, âPresident relents, backs torture banâ, Washing-ton Post, 16 December; Charlie Savage, âBush could bypassnew torture banâ, Boston Globe, 4 January 2006. UntilGeorge W. Bush assumed power, signing statements hadbeen issued 322 times since 1817, but in his first term alone,Bush issued them 435 times. He has used them most fre-quently to assert the unsurpassable power of âthe unitary ex-ecutiveâ over that of both the legislature and the judiciary:Philip W. Cooper, âGeorge W. Bush, Edgar Allan Poe andthe use and abuse of Presidential signing statementsâ, Presi-dential Studies Quarterly, 35 (2005), pp. 515â532; Jennifervan Bergen, âThe unitary executiveâ, Counterpunch, 12 Jan-uary 2006.
70. Josh White and Carol Leonnig, âUS cites exception in tor-ture banâ, Washington Post, 3 March 2006.
71. Rasul v. Bush, 321 F3.d 1134 (S. Ct., 2004); Department ofthe Army, Inspector General, Detainee Operations Inspec-tion, 21 July 2004, in Greenberg and Dratel (eds), TorturePapers, pp. 630â907, 688, 707â708; Emily Bazelon, âFromBagram to Abu Ghraibâ, Mother Jones, March/April 2005;Tim Golden and Eric Schmitt, âA growing Afghan prison ri-vals bleak GuantĂĄnamoâ, New York Times, 26 February2006. Bagram also housed one of the CIAâs secret prisons ina cluster of metal shipping containers; it replaced the infa-mous âSalt Pitâ in an abandoned brick factory north of Ka-bul: Dana Priest and Barton Gellman, âUS decries abuse butdefends interrogationsâ, Washington Post, 26 December2002; Dana Priest, âCIA avoids scrutiny of detainee treat-mentâ, Washington Post, 3 March 2005; idem., âCIA holdsterror suspects in secret prisonsâ, Washington Post, 2 No-vember 2005. But coercive interrogations were also used bythe US military at Bagram, including prolonged standing,hooding and blindfolding, stress positions, intimidation by
attack dogs, sleep deprivation, and sexual abuse. The deathsof two prisoners in military custody, who had been hung inchains from the ceiling of their cells, were acknowledged tohave been homicides: The Threat of a Bad Example (Am-nesty International, AMR 51/114/2003, 19 August 2003);Suzanne Goldenberg and James Meek, âPapers reveal Ba-gram abuseâ, Guardian, 18 February 2005; McKenzie Funk,âThe man who has been to Americaâ, Mother Jones, Sep-tember/October 2006.
72. Tom Engelhardt, âInto the shadowsâ, at http://www.Tom-Dispatch.com, 5 April 2004; Dana Priest and Joe Stephens,âAbu Ghraib is just the most notorious of a network of de-tention centersâ, Washington Post, 23 May 2004; JonathanSteele, âA global gulag to hide the war on terrorâs dirty se-cretsâ, Guardian, 14 January 2005; Douglas Jehl, âPentagonseeks to transfer more detainees from base in Cubaâ, NewYork Times, 11 March 2005; Adrian Levy and Cathy Scott-Clark, ââOne huge US jailââ, Guardian, 19 March 2005;Josh White and Robin Wright, âAfghanistan agrees to ac-cept detaineesâ, Washington Post, 5 August 2005; TimGolden, âUS says it fears detainee abuse in repatriationâ,New York Times, 30 April 2006; Gregory, âVanishingpointsâ.
73. Dana Priest, âLong-term plan sought for terror suspectsâ,Washington Post, 2 January 2005; Julian Borger, âUS planspermanent GuantĂĄnamo jailsâ, Guardian, 3 January 2005;David Stout, âCIA detainees sent to GuantĂĄnamoâ, NewYork Times, 6 September 2006; Dan Eggen and DafnaLinzer, âSecret world of detainees grows more publicâ,Washington Post, 7 September 2006.
74. Neil MacMaster, âTorture: from Algiers to Abu Ghraibâ,Race and Class, 46 (2) (2004), pp. 1â20; Lesley Gill, TheSchool of the Americas: Military Training and PoliticalViolence in the Americas (Durham, NC: Duke UniversityPress, 2004); Jennifer Harbury, Truth, Torture and theAmerican Way: The History and Consequences of US In-volvement in Torture (Boston, MA: Beacon Press, 2005).
75. Hence âGuantĂĄnamo is both a shameful secret and a publicemblem of powerâ: Susan Willis, âGuantĂĄnamoâs symboliceconomyâ, New Left Review, 39 (2006), pp. 123â131, 123.Its partial visibility also distracts the public gaze from whathappens at other GuantĂĄnamos, such as Bagram, and at theCIAâs black sites.
76. Margulies, GuantĂĄnamo, p. 45. Instrumentalism is not con-fined to the Bush administration, and neo-liberalism andneo-conservatism display the same Janus face to the law. Onthe one side, they consistently disparage the law (the appealto âthe unitary executiveâ beyond juridical oversight, the as-sault on âactivist judgesâ, and the clarion call for âde-regula-tionâ). On the other side they assiduously write new lawsthat restrict democratic politics, roll back human rights andreify the free market.
77. Julian Reid, âThe biopolitics of the War on Terrorâ, ThirdWorld Quarterly, 26 (2005), pp. 237â252, 241; see alsoTimothy Brennan and Keya Ganguly, âCrude warsâ, SouthAtlantic Quarterly, 105 (2006), pp. 19â35, 25â28.
78. Kaplan, âGuantĂĄnamoâ, pp. 851â854. Humphreys offers amore optimistic view of judicial intervention â which, as hesays, is strikingly absent from Agambenâs account â but hetoo concludes that, in the cases decided by the SupremeCourt, this has not been âtruly decisiveâ: Stephen Hum-phreys, âLegalizing lawlessness: On Giorgio AgambenâsState of Exceptionâ, European Journal of International Law,17 (2006), pp. 677â687, 687.
79. Hamdan v. Rumsfeld, 415 F.3d 33 (S. Ct., 2006); WilliamBranigin, âSupreme Court rejects GuantĂĄnamo war crimes
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trialsâ, Washington Post, 29 June 2006; Dana Milbank, âItâsBushâs way or the highway on Guantanamo Bayâ, Washing-ton Post, 12 July 2006;
80. Jonathan Weisman, âBattle looms in Congress over militarytribunalsâ, Washington Post, 13 July 2006; Kate Zernik,âWhite House prods Congress to curb detainee rightsâ, NewYork Times, 13 July 2006; Pauline Jelinek, âArmy banssome interrogation techniquesâ, Washington Post, 6 Sep-tember 2006; Julian Barnes, âCIA can still get tough on de-taineesâ, Los Angeles Times, 8 September 2006; Kate Zernikand Neil Lewis, âPlan for tribunals would hew to the first se-
riesâ, New York Times, 7 September 2006; Adam Liptak,âInterrogation methods rejected by military win Bushâs sup-portâ, New York Times, 8 September 2006.
81. Kate Zernik, âMilitary lawyers urge protections for detain-eesâ, New York Times, 14 July 2006; Jonathan Weisman,âSenators gain momentum to change military tribunal sys-temâ, Washington Post, 15 July 2006.
82. Howard Ehrlich, âWhy the black flag?â in his Reinventing An-archy, Again (San Francisco, CA: AK Press, 1996), pp. 31â32.